KI Media: “"Prey Lang បើហ៊ុនសែនមិនឲ្យកាប់ តើនរណាហ៊ាន?" a Poem in Khmer by Sam Vichea” plus 24 more

of Co-Investigating Judges You Bunleng and Marcel Lemonde, 15 September 2010

 

 

The Extraordinary Chambers in the Courts of Cambodia ("ECCC") face two considerable challenges, one by convicted defendant Kaeng Guek Eav (alias "Duch") and the other by the Co-Investigating Judges and the Co-Prosecutors. The first is a straight courtroom brawl that should be easily settled by the judges. The second is far more contentious and has led many observers of the ECCC to challenge its very legitimacy and future. But now both of the Co-Prosecutors and the Co-Investigating Judges have begun to battle among themselves publicly. The integrity of the ECCC hangs in the balance. The pathway is discoverable, but it will take some common sense and courage to find the markers and act responsibly. As I have listened to oral arguments and read and studied the publicly available documents and media reports on these two situations, I am struck by how a distorted view of the personal jurisdiction of the ECCC still appears to deeply influence the work of those whose responsibility lies with an accurate reading of the ECCC Law and the UN-RGC Agreement.

A brief recap of where things now stand: International Co-Prosecutor Andrew Cayley has challenged (see http://blog.cambodiatribunal.org/2011/05/statement-by-international-co.html) the April 29, 2011, decision of the Co-Investigating Judges not to further investigate a number of suspects identified by Cayley in Case 003. That challenge led the Cambodian Co-Prosecutor Chea Leang to disagree with Cayley and pronounce the individuals as not falling within the personal jurisdiction of the ECCC (see http://blog.cambodiatribunal.org/2011_05_10_archive.html). The Co-Investigating Judges then demanded that Cayley retract parts of his May 9th statement (see http://blog.cambodiatribunal.org/2011_05_18_archive.html). Does everyone clearly understand the personal jurisdiction of the ECCC?

I wrote an article for The Phnom Penh Post on January 8, 2009 (available in the January 2009 section of "News" of the Cambodia Monitor Tribunal, accessible at http://www.cambodiatribunal.org/images/CTM/how many are too many defendants at the krt.pdf), that explained the character and possible number of suspects who would be prosecuted by the ECCC, and how both definition and number were discussed during the negotiations leading to the constitutional documents governing the ECCC. Despite this reality check, here we are, almost 29 months later, and there still seems to be vast confusion about the ECCC's personal jurisdiction that is even crippling the investigation of four or five additional suspects. There remains a critical need to return to the fundamentals of the negotiations and summarize what transpired in terms of how to describe the personal jurisdiction of the ECCC and the number of individuals that the Cambodian Government, the U.N. lawyers, and, among others, the United States Government (as an important participant in the negotiations) anticipated would be prosecuted.

Detailed discussions about the scope of the ECCC's personal jurisdiction did not commence until 1999. During 1997 and 1998, the target list was spoken of more generally, with the focus on the surviving senior Khmer Rouge leadership (and we, the negotiators, had no idea whether Duch was still alive). There was much focus on how to ensure the apprehension or surrender of Pol Pot, Ta Mok, Ke Pauk, Ieng Sary, Khieu Samphan, Nuon Chea, Ieng Thirith, and other senior Khmer Rouge leaders rather than nailing down precisely how many would be prosecuted before the ECCC.

I recall as early as January 1999, following a fresh round of talks in Phnom Penh, visiting Beijing and proposing to China's assistant foreign minister, Wang Yi, that the tribunal's targets would be about ten of the senior most Khmer Rouge leaders and that the Cambodia government could suggest names of such leaders to the tribunal for investigation. The estimate of ten did not include by that date either Pol Pot, who died in 1998, or Son Sen, who died in 1997. But Ke Pauk (who died in 2002) and Ta Mok (who died in 2006) were still alive at that time and were definitely in our sights. So a fair estimate of how the personal jurisdiction was evolving in early 1999 would have identified Ke Pauk, Ta Mok, Khieu Samphan, Ieng Sary, Noun Chea, and Ieng Thirith, and shortly would include the notorious Kaeng Guek Eav (alias "Duch") once he was discovered alive and fell into Cambodian custody in mid-1999. That number of seven likeliest suspects still afforded some room for expansion of the suspect list if one works with an estimated number of ten defendants before the ECCC. This would be the most conservative understanding of personal jurisdiction, which I used to try to persuade the Chinese Government to support the prospect of an international criminal tribunal for Cambodia.

Two months later the U.N. Group of Experts for Cambodia delivered their long-awaited report to the U.N. General Assembly and Security Council (U.N. Doc. A/53/850, S/1999/231 (March 16, 1999)). The Group of Experts recommended that, "the independent prosecutor appointed by the United Nations limit his or her investigations to those persons most responsible for the most serious violations of international human rights law..." There clearly was no effort on the part of the experts either to specify who should be on the suspect list or the maximum number of suspects who should be investigated and prosecuted. The Group of Experts report influenced the negotiations (triggering opposing views by the Cambodian Government and supportive responses by U.N. and U.S. negotiators) and focused all parties on how to nail down critical issues, including the character of the tribunal itself and its personal jurisdiction. Within a few months, however, the Group of Experts' recommendation for a Security Council Chapter VII international criminal tribunal, similar to the International Criminal Tribunals for the former Yugoslavia and Rwanda, was abandoned in the face of stiff Cambodian resistance.

On July 30, 1999, the U.N. Secretariat briefed the Security Council on the U.N. officials' proposal for a mixed tribunal for Cambodia to be established under Cambodian law, but with international assistance. One of the proposal's main pillars was to establish the tribunal's "personal jurisdiction reaching the major political and military leaders of the Khmer Rouge and those most responsible for the most serious violations of human rights." There also would be an effort, to the extent possible, to jointly prosecute the top leaders in Nuremberg-style trials.

Cambodian Prime Minister Hun Sen rejected the U.N. plan shortly thereafter and criticized both the U.N. call (long registered) for the arrest of 20 to 30 suspects and the notion of Nuremberg-style joint trials (which should more easily facilitate prosecution of the number of suspects being proposed by U.N. lawyers). With both Ta Mok and Duch in Cambodian custody by then, U.N. negotiators visited Phnom Penh in late August 1999 and one of them, Ralph Zacklin, left with the impression that Cambodian authorities only wanted to prosecute those two suspects. That impression would be overtaken with a more willing attitude by Cambodian authorities as the negotiations progressed through the rest of 1999 and all of 2000.

My own involvement in the negotiating process, both to represent U.S. interests and to serve as a de facto mediator between the Cambodian and U.N. negotiators, intensified. In late October 1999, I stressed to the Cambodians that the U.N. proposal for 20 to 30 suspects was a firm position that had to be reckoned with. I also emphasized that the prosecutor must retain the discretion of whom to indict, as this would be critical to his or her independence and integrity. We agreed that Ieng Sary was a viable candidate for prosecution although he presented some novel issues to be ironed out in the tribunal law. By January 2000, Ieng Sary's prospect as a future defendant before the ECCC was assured and would be further confirmed in the months thereafter.

The drafting of what ultimately became the ECCC Law shifted into high gear in late 1999 and early 2000. In late 1999 I prepared a draft of the ECCC Law for consideration by Cambodian authorities. In that draft I described the personal jurisdiction of the ECCC as "the senior leaders of Democratic Kampuchea and all persons responsible for the most serious violations of Cambodian law [etc]…" (Emphasis added.) This draft clearly foresaw two groups of suspects. But I was too ambitious to refer to "all persons," which I wrote to give the prosecutor the widest discretion. The January 14 and 25, 2000, drafts presented by Cambodia describe the personal jurisdiction as "senior leaders of Democratic Kampuchea and those who were responsible for serious violations of Cambodian criminal law, international law and custom, and international conventions recognized by Cambodia, and which were committed during the period from April 17, 1975 to January 6, 1979. Senior leaders of Democratic Kampuchea and those who were responsible for the above acts are hereinafter designated as 'Suspects.'" (The January 25, 2000, draft has a lower case "suspects.") Note that the term "most responsible" had not yet been injected in the draft. The standard was recorded as "responsible," but the notion of "all persons" of responsibility falling within the tribunal's jurisdiction was rejected in favor of "those who were responsible."

It is important to recognize that by this time (January 2000), Duch already had been in custody for more than six months and was a constant reference point for the negotiators as a likely defendant. The assumption that Duch would appear before the ECCC held firm throughout subsequent years of negotiations. Furthermore, at no point did negotiators state to each other that any suspect must be both a senior leader of Democratic Kampuchea and an individual most responsible for the serious violations. That would have been an illogical position to take. Such a view would have been open to immediate challenge by negotiators, as we wanted to make sure that individuals like Duch who might not be among the senior Khmer Rouge leaders but were responsible for large scale commission of atrocity crimes would be eligible for investigation and prosecution by the ECCC. Both groups—the group of senior leaders and the group of those most responsible for the crimes—were to fall within the tribunal's personal jurisdiction. I do not recall a single suggestion otherwise. This is one of those benchmarks in negotiations that I would remember if someone had proposed an obvious formula to narrow the list only to senior Khmer Rouge leaders who themselves wielded great responsibility during the Pol Pot regime. The only reason to extend the description of personal jurisdiction to another group of individuals with the usage of "and" in the clause would be to identify that other group. Otherwise, we would have drafted the language to read, "senior leaders of Democratic Kampuchea who also were responsible for serious violations…" Nonetheless, we would have been denying, or at least suggesting the denial of, the major responsibility of the senior Khmer Rouge leaders if we had used the disjunctive "or" and thus de-linked leadership identity completely from responsibility identity. That would have been unfair to those senior Khmer Rouge leaders who may not have exercised significant responsibility for the atrocity crimes and yet would be subject to the tribunal's jurisdiction solely by virtue of their leadership positions. We wanted to be very careful about this as we knew that some members of the modern Cambodian Government had Khmer Rouge leadership backgrounds(of whatever rank), but we were only interested in the surviving senior leaders who demonstrated significant responsibility as well as other top functionaries, like Duch, who had such instrumental roles in the atrocities.

The January 25, 2000, draft of the ECCC Law introduced a definitive two-group division for personal jurisdiction. The U.N. translation reads, "…the senior leaders of the Democratic of Kampuchea [sic] and other persons responsible for the crimes and the most serious violations of Cambodian criminal law [etc.]…" (emphasis added) This wording clearly refers to the senior leaders and to another group of persons as falling within the tribunal's jurisdiction.

On March 18, 2000, one of the first drafts of the UN-RGC Agreement appeared. The only descriptions of the tribunal's personal jurisdiction appears in the Agreement's preambular clauses, which refer to 1) "bringing to justice those persons responsible for the crime of genocide and crimes against humanity committed during the rule of the Khmer Rouge 1975-1979," 2) "bringing to justice Khmer Rouge leaders," and 3) "to bring to justice persons responsible for the most serious violations of human rights committed in Cambodia during the period of Democratic Kampuchea, 1975-1979…"

In a letter from U.N. Secretary-General Kofi Annan to Prime Minister Hun in late March, 2000, Annan described the personal jurisdiction of the ECCC as follows: "The personal jurisdiction of the court shall be limited to senior leaders of Democratic Kampuchea and those responsible for crimes and serious violations of Cambodian penal law, international law and custom, and international conventions recognized by Cambodia and which were committed during the period from 17 April, 975 to 6 January, 1979." The common sense interpretation of such language is, again, a two-group formula of 1) senior leaders and 2) "those responsible." It would be nonsensical to read such language as referring only to senior leaders who also were responsible. Again, if that were the intent, simple language could have been used to articulate the intent, for example, "senior leaders of Democratic Kampuchea who were responsible for…"

Hans Corell, the U.N. Legal Counsel, expressed concern to Sok An, the Cambodian Senior Minister and Minister in Charge of the Council of Ministers, in a letter dated March 24, 2000, that the formula for personal jurisdiction actually was broader than intended by the U.N. lawyers. His concern was based not on the two-group formula but on how large the second group, "those responsible for crimes [etc.]," should be stated. He was concerned that the Cambodians were proposing too many potential suspects but Corell's view also reflects a reduction of some reasonable character from the 20 to 30 potential suspects originally envisaged by the U.N. Secretariat. Corell clearly wanted limits, but reasonable limits. The relevant paragraphs of his letter follow:

"Closely connected to the third party mechanism is the formulation of Article 1 of your draft law. Already during our discussions I expressed concern that this provision may be too broad to reflect the concept that I sense that the Government has in mind for the whole endeavour. When Mr. Om Yintieng came to see me off at the airport (I do appreciate this kind gesture) I raised the matter with him. We agreed that as far as the 'senior leaders' are concerned, there is no problem. He then referred to those "most" responsible for the crimes committed during the period at hand. I reacted immediately and pointed out to him that this qualification does not feature in the draft law as presently formulated; the present text basically encompasses any person who committed crimes during the period of Democratic Kampuchea. Is this really the intention? The Co-Investigating Judges and the Co-Prosecutors must have a clear mandate; to act upon a mandate as broad as the one reflected in your Article 1would expose them to criticism as soon as they do not pursue a broad range of cases that would fall under the provision.

"The spontaneous remark of Mr. Om Yintieng at the airport leads me to believe that perhaps the Government's concept of the scope of the legislation is not correctly reflected in the draft law. If this is the case, we have a serious problem which must be corrected before the law is adopted. I see this mainly as an internal Cambodian matter. However, it also reflects on the undertakings that the Secretary-General is making in our Articles of cooperation. In particular, the way in which the chambers are composed indicates that only a relatively limited number of cases can be heard. I therefore reiterate with even more emphasis what I said during our deliberations, namely that the Government needs to take a very close look at Article 1 of the draft law. Any changes made to this provision will, of course, have to be reflected in the exchange of letters between the Secretary-General and the Prime Minister, and in Article 4, paragraph 3, and Article 5, paragraph 3, of the Articles of cooperation."

Thus, in March 2000, the U.N. lawyers actually were trying to revise the Cambodian Government's confusing language that called for a large pool of suspects, which stood in contrast to the now conventional notion that they were insisting on only several senior leaders and Duch as suspects. This requested reversal of the ECCC's mandate should be kept in mind as one interprets the final ECCC Law and UN-RGC Agreement. Ironically, the U.N. lawyers wanted to scale back (in the second group) while the Cambodians were backing language that would have mandated a broader group of those "responsible" for the atrocity crimes.

In a note to me dated March 28, 2000, Corell explained: "The definition in Article 1 [regarding personal jurisdiction] is probably not reflecting the idea that the Cambodians have themselves on the scope of the jurisdiction. The focus on senior leaders is of course correct, but the reference to 'those who were responsible for crimes and serious violations' is so broad that in [sic] encompasses almost anyone who was involved. We doubt that this is intentional. Some qualifications are necessary. Maybe language along the lines 'and those who, because of their special functions or duties, were most responsible for the crimes and serious violations, etc.'." I included this language in a proposed revision of the ECCC Law dated April 2, 2000. And on April 3, 2000, I identified this issue to negotiators as requiring clarification, namely "[t]o clarify scope of Suspects."

Back on March 28, 2000, there appeared the "Final Draft in Legislative Commission of the National Assembly with Comment by CDP and the Cambodian Human Rights Action Committee," which was the latest draft of the ECCC Law. There was one important clarification in that draft that reaffirms the two-group formula. The personal jurisdiction reads, "…the senior leaders of Democratic Kampuchea and other persons responsible for the most serious violations of Cambodian criminal laws [etc.]." (Emphasis added)

In late April 2000, Senator John F. Kerry (D-Massachusetts) visited Phnom Penh to address, in part, the difficulties in the negotiations. Prior to his trip there, he consulted with me about the state of the drafting. In my letter to him of April 26, 2000, I confirmed that, "The U.N. has moved a long distance by agreeing to, and indeed now advocating, a narrowing of the scope of jurisdiction in Article 1 of the draft law. Previously, the U.N. lawyers spoke of the need for a broad scope of jurisdiction so as to respond, in particular, to NGO desires to cast a wide net over suspects." That "broad scope" had envisaged more than 20 likely suspects.

The July 7, 2000, draft of the ECCC Law included the U.N.'s proposed language and "Note" in bold typeface. The relevant extract reads:

"ARTICLE 1:

The purpose of this law is to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from April 17, 1975 to January 6, 1979.

Note: The UN delegation has at an early stage expressed concern that the draft Article 1 presently before the National Assembly is too broad; it practically covers everyone who had any part in the criminal activities of the Khmer Rouge. Such a result is obviously not intended by the government, and it would be impossible for the Extraordinary Chambers to deal with such a magnitude of cases. The UN delegation has therefore added the word 'most' as an illustration of how one could limit the scope of personal jurisdiction in a reasonable way. If other solutions are contemplated to achieve the same result, the United Nations is of course prepared to examine them. At the express request of H.E. Sok An, the UN delegation has examined such solutions, while emphasizing that the formulation of this article is a political decision to be taken at the national level. We must, however, reiterate that the language of the provision has to be commensurate with the capacity of the Extraordinary Chambers. With this proviso, we suggest that an alternative text could be, for example, 'and the most notorious perpetrators of the crimes and serious violations etc.' Please note that when Article 1 is finalized, Article 2 [Competence] has to be adjusted accordingly."

Thus the U.N. lawyers were proposing, as of July 2000, a two-group formula, with the second group being "those who were most responsible" and bearing in mind the capacity of the Extraordinary Chambers. The U.N.'s proposed language for Article 1 was used in the draft law reported on by the Phnom Penh Post in its Issue 9/22, October 27-November 9, 2000.

Prior to Senator Kerry's return visit to Phnom Penh in November 2000, I wrote a note to him saying in part, "It is critical that you confirm closure on Article 1 of the draft law's scope of personal jurisdiction and make sure that the text of Article 1 is precisely what the UN wants, i.e. that it includes 'those who were most responsible…' Get Sok An to confirm that with you."

On January 2, 2001, the Cambodian National Assembly adopted the ECCC Law with the competence of the Chambers reading, "…senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws [etc.]." The U.S. State Department issued a statement that day declaring in part that, "The United States welcomes the action in the National Assembly of the Cambodian Government unanimously approving a draft law to establish 'Extraordinary Chambers' for the investigation and prosecution of senior Khmer Rouge leaders and others who were most responsible for the atrocities of the 1975-79 period in Cambodia." (emphasis added)

Perhaps it is remarkable that in Senior Minister Sok An's formal "Presentation and Comments on the Draft Law" to the National Assembly on December 29, 2000, and January 2, 2001, he does not refer even once to the personal jurisdiction of the Extraordinary Chambers. This silence prevails despite his reference to many other issues that complicated and delayed the negotiations. One would have thought that if a truly minimal number of suspects (such as five) was that important to the Cambodian Government and thus compel officials to ensure it were part of the legislative history of the ECCC Law, Senior Minister Sok An would have made it a point to emphasize such a limited scope for the personal jurisdiction during his formal remarks before the National Assembly. But that did not occur.

In a letter to Senior Minister Sok An dated January 9, 2001, U.N. Legal Counsel Hans Corell did not raise personal jurisdiction as one of the problems he saw in the law that was adopted by the National Assembly. That omission would suggest that the language for personal jurisdiction was finally settled between the parties.

On January 15, 2001, the Associated Press reported that, "Hun Sen has said the government is ready to apprehend anyone the court indicts but has cautioned against prosecution of the late Pol Pot's former foreign minister and brother-in-law, Ieng Sary, saying that could lead to war. However, Cabinet minister Sok An, who is responsible for the tribunal, assured the [Cambodian] Senate that Ieng Sary could also find himself under its scrutiny. 'When the law is approved everybody must be under the law,' Sok An said." Years later Prime Minister Hun Sen did not object to the indictment and now imminent prosecution of Ieng Sary before the ECCC.

Then, on January 18, 2001, Nayan Chanda reported in the Far Eastern Economic Review, that, "The decision on who is to be tried will be made 'by respecting the spirit of the law,' says [Senior Minister] Sok An. The bill, he says, does not define what constitutes a crime serious enough to be prosecuted, and so will 'have to be adjusted to determine who will be the target.'" One can read these words as signaling an interpretative debate over the language of the personal jurisdiction, but the statutory independence of the Chambers and of its co-prosecutors also must be factored into any such interpretation.

The next day, on January 19, 2001, Prime Minister Hun Sen visited Anlong Veng, where Ta Mok was captured in March 1999 and which became the last Khmer Rouge base area to surrender to the government. He spoke there to an estimated 3000 former Khmer Rouge men, women, and children and to ambassadors from resident ASEAN missions, the North Korean ambassador, the DCM from the British Embassy, and directors of the International Monetary Fund and other aid agencies and non-governmental groups. (Some press reports estimated a lower number of more than 1,000 residents of Anlong Veng in attendance at the speech.) I received an unclassified report of his visit from the U.S. Ambassador to Cambodia, Kent Wiedemann. He wrote in part: "Hun Sen stressed more than once that the scope of prosecution [of the ECCC] would be limited to the leaders responsible for the crimes, plus the most odious practitioners of crimes such as 'Duch,' head of the infamous Phnom Penh torture center, Tuol Sleng. Apparently mindful of the need to educate his audience on the independence and integrity of the tribunal, Hun Sen also emphasized that the tribunal would make all decisions on who would be charged with crimes, and neither he as prime minister, nor any other member of the executive or legislative branches of government could interfere with the decisions of the tribunal."

The Deutsche Presse-Agentur reported on that day as well that during his speech at Anlong Veng, Prime Minister Hun Sen said, "Please, people affiliated with the Khmer Rouge don't feel afraid or run into the forest to support your former leaders….We will not bring 12 million Cambodians to court, or even 1,000 or even 100. Just top leaders." The DPA article continued, "The Prime Minister addressed concerns that he would meddle in the judiciary process after making statements last week calling on a court to allow Ieng Sary, who was granted a royal pardon for leading a mass Khmer Rouge defection, to remain free from prosecution. 'I cannot guarantee to anyone that they will not be prosecuted by the court because this is the power of the court,' the Prime Minister said. 'I have no right to protect anyone from prosecution. There is no law allowing me to do such a thing.'"

AFP also reported on January 19, 2001, with respect to Hun Sen's visit to Anlong Veng, that the Prime Minister confirmed, "The trial of four or 10 people will bring justice for [Cambodia's] 12 million people. That is enough." Kyodo news service reported Hun Sen's remarks to describe the number of those brought to trial to be "four or five to 10 only."

This brief history of the negotiations and final drafting of the ECCC Law and UN-RGC Agreement with respect to the personal jurisdiction of the ECCC should demonstrate that while the Cambodian Government originally proposed language that would have greatly expanded the number of suspects falling within the Chambers' reach, ultimately more limiting language was adopted at the insistence of U.N. officials. However, having been part of the negotiations for years, I know of no concession by U.N. negotiators to interpret the personal jurisdiction language so as to limit the suspect pool to only five specific individuals. As I wrote in the Phnom Penh Post on January 8, 2009, negotiators "typically spoke of up to 15 or so individuals ultimately being prosecuted." That number was a drastic reduction from earlier hopes by U.N. and non-governmental bodies of 20 or 30 or even more suspects being put on trial. To suggest now that somehow the Cambodian authorities interpreted the final personal jurisdiction language to limit the suspect pool to only five individuals lacks credibility, particularly in light of years of negotiations and the much broader grab at personal jurisdiction that the Cambodians supported through much of 2000.

Furthermore, as demonstrated in this essay, there is simply no plausible way to interpret the personal jurisdiction language of the ECCC Law to narrow the field of suspects only to senior Khmer Rouge leaders who also were most responsible for the atrocity crimes of the Pol Pot regime. Duch's appeal challenging his designation within the personal jurisdiction of the ECCC (see coverage of his arguments on appeal at http://blog.cambodiatribunal.org/2011/03/duch-was-just-tool.html and http://blog.cambodiatribunal.org/2011/03/final-words.html) is clearly refuted by the legislative history of the ECCC Law, by a common sense grammatical reading of the text, and by clear expressions of intent by the Cambodian Government and U.N. negotiators prior to enactment of that law

It is unfortunate that Cambodian Co-Prosecutor Chea Leang publicly declared on May 10, 2011, that the unnamed additional suspects in "Case File 003 were not either senior leaders or those who were most responsible during the period of Democratic Kampuchea." How either she or even the Co-Investigating Judges could possibly arrive at that view, given what is publicly known now from media sources about the likely suspects and the crimes allegedly committed by them, and given any reasonable interpretation of those "most responsible" within the ECCC's personal jurisdiction in light of the negotiating history of the ECCC Law, will be grist for historians for decades to come. Is this politics or law speaking to us?

My hope is that the Co-Investigating Judges will undertake the investigative tasks reasonably set forth by Cayley and stop issuing foolish orders that only reveal their own insecurity over past performance. Either the Co-Investigating Judges or, if an appeal can be successfully lodged before them, the Pre-Trial Chamber eventually must demonstrate enough integrity to set the ECCC on its original course of a limited but reasonable number of suspects falling within one of two categories: those who constituted the senior leadership of the Khmer Rouge and those who were most responsible for the crimes and serious violations set forth in Article 1 of the ECCC Law. The resources must be available for that challenge as well. The world is watching, very closely, and history will be the final judge.

A US-based organization for survivors of the Khmer Rouge condemned the UN-backed war crimes tribunal on Thursday for preventing overseas Cambodians from taking part in the court's controversial third case. Tribunal observers fear the court is trying to dismiss those cases in the face of stringent government opposition.

The U.S.-based survivors group ASRIC says the war crimes tribunal in Phnom Penh will fail to deliver justice if it ditches its third and fourth cases that are opposed by the Cambodian government.

The judges closed the investigation into case three about one month ago. But the international prosecutor, Andrew Cayley, later said the investigation into case three was deficient and said more work should be done. Since then, Cayley has been ordered by the court to retract the criticism but he says he will appeal the order.

ASRIC says the tribunal cannot decide on the merits of its third case without a proper investigation.

Leakhena Nou is the founder of ASRIC, which is the only Khmer Rouge survivors' organization in the United States.

"Cambodian survivors and Cambodian society deserve better than this because they've suffered for 35 years and they have not had their day in court," she said. "So just prosecuting the five senior-most defendants is not enough if there is evidence that leads to other potential perpetrators, then the court officials need to do the right thing."

She says that in the past week more than 750 people have signed a petition calling on the UN-backed tribunal to investigate case three properly. She says the court, which has been largely silent on what is going on, needs to do better.

"Well we want more transparency coming from the court. We want more up-to-date information," she said. "And we need the court to settle their differences both on the Cambodian side and the UN. So people just have to put their egos aside and focus on what's best for the survivors as opposed to their own individual interests."

The UN-backed tribunal in Phnom Penh was set up to hear cases involving crimes committed by the Khmer Rouge during the movement's rule of Cambodia between 1975 and 1979.

Around two million people died during that four-year period.

A total of 10 people were expected to be investigated in four cases.

The court concluded the first case last year and convicted the former security chief of the Khmer Rouge of war crimes and crimes against humanity. The four elderly defendants in case two will go on trial next month.

But the Cambodian government has expressed outright opposition to cases three and four. Prime Minister Hun Sen has said that additional prosecutions could destabilize the country's security.

Critics say that because of the hybrid nature of the tribunal - with Cambodian and international staff in parallel positions throughout its structure - the government opposition has significantly hampered the chances of a proper investigation.

During the investigation into case three, the investigating judges decided not to release any information to the public. The secrecy meant victims of the Khmer Rouge in Cambodia had no way of knowing whether the crimes being investigated affected them.

International prosecutor Cayley has called on the court to extend the May 18 deadline for applications by six weeks. ASRIC, which registered dozens of civil parties for case two, supports that stance.

The investigating judges who have authority over that decision have not commented on the request for an extension.

Villagers from four provinces protested in the capital yesterday and handed officials a petition signed by more than 30,000 people opposed to land concessions in the Prey Lang forest, as activist and monk Loun Savath narrowly escaped arrest at the event.

About 200 villagers from Kampong Thom, Preah Vihear, Kratie and Stung Treng gathered at the government's designated protest zone, Freedom Park, to express concern over concessions in a forest they say is essential to their livelihoods. Activists waved banners, sang songs and marched, but perhaps most notable was their attire: green shirts, banana leaf hats and forest-green paint on their faces.

Som Lach, a 41-year-old man from Preah Vihear's Chey Sen district, said the decorative wear was a demonstration of their solidarity with a natural resource under threat.

"Nature cannot speak out, and we are dependent on natural resources, so we have to speak out on its behalf," he said.

Protest leaders submitted a petition to the prime minister's cabinet, the National Assembly, provincial authorities and three government ministries yesterday calling for an end to all concessions in the 3,600- square-kilometre forest.

The petition also calls for the government to rescind permits that have already been given to companies to log the forest, to stop the clearance of land and to allow logged areas to regrow.

Hean Bunhieng, a project officer at NGO Forum, said activists had collected about 30,000 signatures in just one month and would continue to seek more.

While the government has argued that concessions to rubber companies such as Vietnam's CRCK will generate jobs, 33 year-old Oeun At of Chey Sen district said yesterday that the 12,000-riel (US$2.96) daily salary offered for such work was not a living wage.

"We need to plant rice and farm by ourselves, so the government should withdraw all the licences given to companies and give the rights back to the community," she said.

Loun Savath, who has been living in hiding in recent weeks out of fear of arrest in retaliation for his activism in land disputes, came to show support for the Prey Lang campaign yesterday.

"Even though the authorities are trying to arrest me, I am not worried because I have done no wrong," he said. "If they are still trying to arrest me, it is their problem."

Shortly afterwards, he was forced to flee the scene with the assistance of rights groups when it appeared that local authorities were planning his arrest.

Police in Sen Sok district blocked a march planned for yesterday by workers from the June Textile garment factory, who have been demanding severance payments since the facility burned down in March.

Roughly 100 workers and activists gathered outside June Textile yesterday, planning to march to the capital's Freedom Park and to government buildings.

They were surrounded by around 200 district and municipal police, however, who prevented them from marching and ripped away the megaphone of Cambodian Confederation of Unions president Rong Chhun, who spoke at the rally.

The roughly 1,000 workers from the factory have previously called for severance payments of US$150 for every year worked at the factory, though Rong Chhun put the demand yesterday at $100. Factory representatives have offered $20 per year worked.

Rong Chhun said he planned to appeal to garment buyers in the United States and Europe if the issue is not resolved shortly.

"I don't want to do anything to affect the buyers, so I gave the boss one week to settle this matter," he said.

Dave Welsh, country director for the American Centre for International Labor Solidarity, said a hearing in the case had been scheduled for May 31 at the Arbitration Council, where workers will be joined by staff from ACILS and the Community Legal Education Centre. He called the management offer of $20 per year worked unacceptable.

"The $20, basically, they're pulling out of the hat, so we're hoping that's just an opening offer, because it has no basis in law," he said.

But Ken Loo, secretary general of the Garment Manufacturers Association in Cambodia, said the fire qualified as an "act of God" under the Kingdom's Labour Law, and therefore that the company did not owe any severance beyond what it has already agreed to pay out for annual leave and wages for the month of March. The $20 offer, he added, came as a result of "compassion" rather than a legal requirement.

"Everyone has suffered in this incident, so that's just the way it is," he said.

Police on the scene of yesterday's protest declined to comment, as did Sen Sok deputy governor Cheng Monira.

Ky Say, a June Textile representative, said yesterday that the firm lived up to its legal obligations.

"The factory has suffered damage and can only offer a small amount of money to support the workers," he said.

Former employees said, however, that they were prepared to continue the struggle.

"If there is no resolution, the workers will continue protesting," said Mom Sophors, a 15-year veteran of June Textile.

In view of misrepresentations in the article "Cambodia's troubled tribunal" published in the 25 May 2011 edition by the International Justice Tribune, the Co-Investigating Judges of the ECCC point out the following:

1. Regarding the allegation "investigating judges (are) threatening the international co-prosecutor with contempt of court":

The Co-Investigating Judges never threatened this, nor did they ever let it be known that they were considering this; rather this is a malicious rumour intended to disrupt the harmony within the Court. [KI-Media Note: DENY No. 1]

2. Regarding the reported statement "at this pace, the tribunal is heading for an irreparable crash":

As the Supreme Court has held hearings on appeals in Case 001, and as the Trial Chamber scheduled initial hearings in Case 002 for 27-30 June 2011, furthermore as the Pre Trial Chamber is successfully dealing with the caseload of more than 1,700 individual appeals, and as the Office of Co-Investigating Judges and the Office of the Co-Prosecutors are working normally (despite certain disagreements), the assertion that the tribunal is heading for a crash is baseless. [KI-Media Note: DENY No. 2]

3. The reported statements "the tribunal is in danger of collapse" and "the court's future hangs in the balance" are therefore nonsensical and do not correspond with reality.

The Co-Investigating Judges have worked independently from outside interference, will continue to resist all such attempts, and are resolved to defend their independence against outside interference, wherever it may come from. [KI-Media Note: DENY No. 3]

Please find below the redacted copy of the appeal against the order on the admissibility of the civil party applicant of Seng Chan Theary. With the name of the suspects in Case 003 known by the public in general, the hiding of these names by the KRT seems too a futile exercise. Wouldn't Kafka be laughing from this coffin should he hear this situation?

of Co-Investigating Judges You Bunleng and Marcel Lemonde, 15 September 2010

 

 

Mao Hak, the deputy director in charge of technical issues and director of the water department of the ministry of Water Resources and Meteorology, said on 24 May 2011 that, based on preliminary prediction, the level of the Mekong River at the Bassac River measuring station during this rainy season could reach up to a level of 10.15m, i.e. an indication of major flooding. During the rainy season of 2010, the level of the Mekong River raised only to 8.45m, i.e. a minor level of flooding. Mao Hak indicated that the number of typhoons in the region would be less than average, i.e. between 20 to 22 typhoons. Currently, Sonda, the second typhoon of the year, is active in the Pacific ocean, but it does not affect Cambodia.

PHNOM PENH (Xinhua) – The government of China on Thursday delivered 50,000 sets of military uniforms to Cambodia, signaling a closer defense cooperation between the two nations.

The hand-over ceremony was held at the Military Airport in Phnom Penh between Zhang Jianlin, Chinese military attach to Cambodia, and Lt. Gen. Sun Samnang, director general of Cambodia' s Defense Ministry's logistics and finance department, under the witness of the four-star general Moeung Samphan, a secretary of state for Cambodian Defense Ministry.

Speaking after the hand-over ceremony, Zhang Jianlin said that the donation of military uniforms was made after the meeting between Chinese President Hu Jintao and Cambodian Prime Minister Hun Sen in May last year in Shanghai.

At that time, Hu Jintao pledged a joined package of 257 military trucks and 50,000 sets of military uniforms to Cambodia.

The 257 military trucks had delivered to Cambodia in June last year.

"Now, to honor the promise, Chinese government has handed over the uniforms to Cambodia today," he said.

"Chinese Defense Ministry hopes that the uniforms will help relieve the shortage of Royal Cambodian Armed Forces," he said. "The donation also reflects honest and good cooperation between Chinese and Cambodian armies."

He continued to say that China is pleased to help Cambodian military sector as much as possible to tighten closer cooperation ties between the two nations.

Meanwhile, Moeung Samphan expressed profound thanks to the government of China and Chinese Army for their continuous supports to Cambodian armed forces and highly evaluated the good cooperation between Cambodian and Chinese defense ministries.

"The donation of the military uniforms today is on the right time as Cambodia is facing the shortage of military materials," he said. "Cambodia firmly hopes that China will continue further support to Cambodian armed forces."

A casual conversation with a friend reminded me of one important view about borders. He jokingly said "in a modern world like this, I thought borders are no longer an issue." I have been learning about border issues for a couple of years now and managed to learn one important thing: Borders do matter and they even still dictate nations in the world. In this context, my friend's statement, to an extent, surprises me.

However, I also understand that he must not be alone. There might be millions of people, if not more, who do not realize that the world is changing when it comes to international borders.

One might agree that the most attention-grabbing border dispute in Asia recently is between Thailand and Cambodia. The two countries dispute sovereignty over a piece of land in their border area close to three temples: Preah Vihear, Ta Moan and Ta Krabey.

The latest incident took place early this month, claiming the lives of several people and forcefully displacing many more. The recent report by The Jakarta Post (May 19, 2011) revealed that the "repeated skirmishes have claimed at least 23 lives on both sides since early this year".

Indonesia, in its capacity as the current chair of the Association of Southeast Asian Nations (ASEAN) has proactively offered mediation to help Thailand and Cambodia achieve a solution. Meetings held on April 7-8 in Bogor were a positive sign of ASEAN's involvement, even though the result did not seem to be satisfactory.

Thailand tends to believe that the solution must be achieved bilaterally, while Cambodia welcomes third party intervention. In addition, it is worth noting that ASEAN has a policy of non-interference in each other's domestic affairs, which, to an extent, also limits ASEAN's role in finding solutions. Meanwhile, internal issues in Thailand and Cambodia also, to an extent, add fuel to the tension.

It is tempting to say that the solution for the Thai-Cambodia border dispute has to be very quick, for it is urgent. That might be the reason why people expected too much out of the recent 18th ASEAN Summit in Jakarta. Some opined that the summit was a failure because it achieved no significant results concerning the border dispute between Thailand and Cambodia.

Interestingly, border issues seemed to overshadow other important agendas of the summit, as if the border dispute was the only important issue to deal with. This once again indicates how important border issues are for nations in the world. Borders do matter.

Settling borders is by no means an easy task to accomplish. It involves technical and legal expertise for the use of political solutions. Borrowing the view of Stephen Jones (1945), creating boundaries involves four important steps, which are not necessarily sequential: Allocation, delimitation, demarcation and administration. Allocation deals with territory where parties agree on a broad division of territory.

In the delimitation step, parties involve political, legal and technical experts to decide on a precise alignment of boundaries and illustrate them on maps. Demarcation is required on the ground. The points and lines agreed in the delimitation stage are then defined on the ground where they are physically marked with pillars, posts and fences. The last step is administration, involving activities to maintain the boundaries, including comprehensive development for people residing around border areas.

Cambodia is attempting to use the 1962 ICJ decision to strengthen its position in the current dispute. On April 28, 2011, Cambodia filed an application to the ICJ requesting interpretation of the 1962 judgment. In response, the ICJ has scheduled a public hearing on May 30-31, 2011, where both parties will be given opportunities to express their views through oral observations.

The role of technical expertise reminds us of a phenomenal border settlement in America around 250 years ago. Charles Masson (an astronomer) and Jeremiah Dixon (a surveyor) are acclaimed for their work to settle the borders among four British Colonies in America: Pennsylvania, Maryland, Delaware and West Virginia.

To acknowledge their role, the line is called Masson-Dixon line. While their technical expertise certainly helped them settle the borders, political will demonstrated by relevant parties undoubtedly made the settlement possible. Having learned from this border-making history, it seems that Thailand and Cambodia also need to demonstrate positive political will to solve border issues between them.

Good intentions from Indonesia/ASEAN and other third parties, when allowed, can only be effective with positive political will. As a surveyor, I don't question the important role of technical expertise, but I also acknowledge that technical people cannot do much in the absence of political will.

The world is currently watching what happens between Thailand and Cambodia. While acknowledging that external parties cannot do much without the willingness of the parties in question to solve an issue, it is fair to say that the world has put hope and expectation on Indonesia's leadership in ASEAN.

Finding a solution for the Thailand-Cambodia border dispute is essential for paving the way toward an ASEAN community in 2015. If there is anything we want the world to talk about when it refers to ASEAN, it is certainly not the issue of border disputes.

Over the last twenty years Cambodian Foreign Minister Hor Namhong has filed a series of defamation lawsuits against all those who exposed his Khmer Rouge connections: Former King Norodom Sihanouk, opposition leader Sam Rainsy, independent Web sites such as KI-Media, Sacrava and Khmerization. A few months ago, he lodged another defamation complaint before the French court against the Paris-based magazine "20 Minutes", French journalist Corinne Callebaut and Mrs. Ung Boun-Hor, the widow a former president of Cambodia's National Assembly in the 1970's who is now living in Paris.

On 15 July 2009 the magazine "20 Minutes" published an article by Corinne Callebaut titled "14 Juillet : l'invitation du Premier ministre cambodgien, connu pour son passé de Khmer Rouge, passe mal" [14 July : The controversial invitation extended to the Cambodian Prime Minister known for his past as a Khmer Rouge].

In the above-mentioned article Mrs. Ung Boun-Hor was quoted as saying, "Ce qui nous fait le plus de mal est que la France accueille également [avec le premier ministre cambodgien Hun Sen] Monsieur Hor Nam Hong, le ministre des Affaires étrangères. Car si Hun Sen a été un khmer rouge, il n'a pas fait partie de l'Angkar [l'organisation politique khmère rouge], contrairement à son ministre, qui fut lui le responsable d'un centre de concentration et de tortures. Cet homme devrait figurer sur la liste des accusés au procès des Khmers Rouges". [What hurts us most is the fact that France also welcomes (along with Cambodian prime minister Hun Sen) Mr. Hor Nam Hong, the minister of foreign affairs. Since although Hun Sen was a Khmer Rouge, he was not a member of Angkar (the Khmer Rouge political organization), contrary to his minister, who was responsible for a concentration and torture camp. That man should be on the list of those to be prosecuted at the trial of the Khmer Rouge].

Read full article in French at http://tinyurl.com/n5c4l8

The fact that Hor Namhong finally and definitively lost his lawsuit against Sam Rainsy following a historical decision by the French Supreme Court on 27 April 2011, bodes ill for his latest lawsuit in France against "20 Minutes", Corinne Callebaut and Mrs. Ung Boun-Hor.

Political parties in the race for the July election need to make clear their policy on Cambodia, as the case of the disputed Preah Vihear Temple at the International Court of Justice (ICJ) will be a ticking time-bomb for the new government after the poll.

The Cambodian government has requested that the ICJ clarify the scope and meaning of the 1962 judgement on the case in order to exercise its sovereignty over the temple and its vicinity.

The court ruled that the temple is situated in territory under the sovereignty of Cambodia, and ordered Thailand to withdraw troops and personnel from the temple and its surrounding areas deemed as Cambodian territory. Thailand complied with the court's ruling, but Cambodia considers that what Thailand has done is not enough, and wants the court to make clear what "the territory under the sovereignty of Cambodia" is.

There are many potential options in dealing with this case. Over the nearly five decades since the ICJ ruling, Thailand's governments have tried to deal with Cambodia outside the courtroom by exercising good relations to interpret the 1962 judgement jointly and define the boundary line in the areas around Preah Vihear. The two countries have a memorandum of understanding on land-boundary demarcation, signed in 2000, and have also set up a Joint Boundary Commission to survey and demarcate the boundary.

The bilateral instrument and mechanism previously seemed to work properly to define the entire land boundary, until Thai nationalist groups together with the Democrat Party opened historical wounds by opposing the Cambodian plan to inscribe the Preah Vihear Temple as a Unesco World Heritage Site.

The World Heritage inscription of a property situated in a territory, sovereignty or jurisdiction that is claimed by more than one state shall in no way prejudice the right of the parties to the dispute. However, Thai nationalist groups and the Democrat Party over its past few years in power have been, and still are, worried over the loss of the right to claim the vicinity around Preah Vihear and even the right to reverse the 1962 ICJ ruling. The outgoing government has tried by all means over the past two years to prohibit Cambodia from management of the World Heritage-inscribed temple.

Phnom Penh has reacted fiercely to the obstructionist Thai move, resulting in a series of military clashes in the border areas, which has caused the loss of lives of civilians and soldiers on both sides. Rather than giving up, the Thai government has exploited the armed conflict as an excuse to block further Cambodia's management plan for Preah Vihear. But this is not the end of the story, as Cambodia has opened a new battlefront at the ICJ to seek a permanent solution to the boundary conflict.

Legally speaking, the game in court is not to Thailand's advantage, since the ruling was made in favour of Cambodia. When the court ruled in 1962 that Preah Vihear belongs to the Cambodian side, the judges should have cleared up exactly where the boundary is. The court at the time used a French-made map to define the boundary. If the court had interpreted the ruling on the line of previous judgements, Cambodia would also have got what it claims.

The ruling Democrat Party chose to fight in the court and instructed the Foreign Ministry to set up a legal team to go to the ICJ. Lose or win, the party must take responsibility for the consequences.

Other political parties running in the election should offer alternatives. The other option for Thailand is to settle the matter out of court and return to the bilateral instrument and mechanism to define the boundary. It would be better if the two countries could restore good relations and sit down equally to help each other define the boundary and benefit from the potential the temple and adjacent area offers in terms of trade and tourism.

Candidates in the upcoming general election must inform the electorate of how they stand on this issue, as it is one of the most important issues facing Thailand at this juncture. How the public chooses will have a direct bearing on how this issue is eventually resolved.

Thanks to whoever post this photo.

The year was around 1963 we were so crazy about the Beatles and the Rolling Stones.

From the left: My little buddy Chattany (Shorty) was so dedicated to playing solo guitar, damn near flunk out of high school.

Sitting down center: the ever troublesome boy on Rue Pasteur, and my comrade in arms Khoun Chunn (passed away 2 years ago in LB, CA) played bass. Khoun was an Army officer with the Khmer Republic, and a kick-ass artillery commander, and a close air support coordinator with the US airstrike, we fought the VC and KR together in those eternal days and nights down the big river south of PPenh. We stopped singing in English but we call for bombs in English to save PPenh and the rest.

The guy with the mustache is Thol the drummer (who took my place as I moved on from the Drakhar to play with other notorious bands).

My memory just failed me I do not recall the name of the boy on the far right, he must be the singer for the group.

Memory..like the corners of my eyes... misty watercolor memory... of the way we were...!

Scattered pictures... of the smiles we left behind...smile we gave to one another... for the way we were.....!

Chattany I know you are still alive, this is your classmate from Class de sixieme, Lycee Sisowath, remember, we originated the idea of a band together back then.

Be happy and stay out of Jail you hear me!

http://www.youtube.com/watch?v=Iaf_To1xEe0&feature=related

Cambodian Center for Human Rights (CCHR) is pleased to inform you that CCHR will organize a public forum on Human Rights and Development on 31 May 2011 from 8.00 am to 11.30 am in Bal Hal Village, Reak Reay Commune, Roveang District, Preah Vihear Province. The forum's main themes are land concession, mine exploration, and Prey Lang deforestation.

Many hundreds of families from Roveang and Cheay Sen Districts, Preah Vihear Province, have been affected by land concession, mine exploration and Prey Lang deforestation. Villagers sought intervention from the Cambodian Center for Human Rights and other civil society organizations when the forest whose resources they enjoyed is being cleared.

A number of companies have been granted thousand hectares of economic land by the government for agro-industrial crops in Roveang and Chey Sen Districts, Preah Vihear Province. These companies have been implementing their plans since 2009 and the other since 2010, which affects the villagers' land and forest.

The Cambodian Center for Human Rights organizes a public forum to provides opportunity for the villagers across the province to air their opinions, concerns, requests and other problems to parliamentarians, local authorities, expert officers, civil society and other relevant stakeholders so that peaceful resolutions can be established.

Participants in the forum include parliamentarians from Cambodian People Party,

FUNCINPEC Party, Sam Rainsy Party, Human Rights Party, Norodom Rannarith

Party, representatives from Ministry of Agriculture, civil society and Ministry of

Environment, especially local authorities and villagers.

Should you need further information, please contact Mr. Chhim Savuth at +855 12 899858 or savuth@cchrcambodia.org and Mr. Suon Bunthoeun at +855 12 483546 or buntheoun@cchrcambodia.org.

Yours faithfully,

#798, St.99, Sangkat Boeung Trabek,

Khan Chamkarmon, Phnom Penh, Cambodia

The Cambodian Mine Action Center has found more than 300 hectares of land peppered with cluster munitions, believed to be fired by Thailand during border fighting in February.

Clearance of the unexploded ordnance could take up to a year or more, demining officials said, following an assessment of the area by CMAC and Norwegian People's Aid.

"We are searching for more areas affected with submunitions of cluster munitions," CMAC Secretary-General Heng Ratana told VOA Khmer Wednesday.

Jan Erik Stea, program manager for mines at Norwegian People's Aid, told reporters Wednesday the munitions were found druing a two-day assessment in April. Twelve areas, including four in villages, spread over more than 1.5 million square meters in Preah Vihear province's Choam Khsant district were identified, he said.

"Between 5,000 and 10,000 people will be directly impacted by the cluster munitions," he said. "They have small submunitions between the houses, which is of course a danger for the people living there."

Two types of submunitions—M42 and M85—were identified, he said.

Authorities re-inaugurated Phnom Penh's 74-year-old New Market on Wednesday, following a years-long renovation.

Eric Beugnot, country director for the French Development Agency, said the facelift was done with the "historic quality" of the market in mind.

New Market, known to many foreigners and tourists as Central Market, was repainted in a yellow reminiscent of its French colonial past, with roadways along the side widened.

The market, which first opened in 1937, has 3,000 shops, ranging from stationary and electronics, to rice, meat and trinkets for tourists.