A Well-Reasoned Critique? – Marie Guiraud Responds to East-West Center Report

The East-West Center in Honolulu, Hawaii published a 98-page report titled “A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01)” on 6 November 2015, a little under two weeks prior to the appeal hearings before the Supreme Court Chamber in Case 002/01 that had been initially scheduled for 17-19 November 2015 (hereinafter, referred to as the “Report”).

The publication of this report was noted in the local media, including in The Cambodia Daily,¹ The Phnom Penh Post,² the Khmer Rouge Trial Monitor website,³ and the Cambodia Tribunal Monitor.⁴ The report garnered attention during the appeal hearings when the accused, Nuon Chea, whilst addressing the Supreme Court Chamber on 17 November 2015 stated:

“[t]he Judgment was a shameful failure. It didn’t simply fail to deliver truth and justice; it actually managed to take us even further away from the truth and to make a mockery out of justice altogether just in order to prosecute me. My lawyers in fact tell me that an academic report was recently released which says the same thing.”⁵

The Report then found further mention in Victor Koppe’s response to the Supreme Court Chamber’s request for explanation for his absence from the appeal hearing.⁶

Having read the report with great interest, I contacted its authors on 10 November 2015 sharing with them my concerns regarding certain inaccuracies contained in Part II of the Report concerning civil parties. I received a response from the authors on 18 November 2015 only after the first (and the only) day of the appeal hearings had concluded, stating that my concerns stemmed from a misapprehension of the role – and necessary objectivity – of trial monitors.

I disagree with the authors that the Report objectively presents the legal framework at the ECCC and the relevant arguments of each of the parties concerning the civil party representation scheme at the ECCC.⁷ On the contrary, the report is often incomplete and inaccurate. Mindful that the majority of the critiques discussed in the Report are on matters still pending adjudication on appeal,⁸ the purpose of this Response is not to engage in debates that should appropriately take place before the Supreme Court Chamber, but rather to alert readers of several shortcomings of the Report, especially as they relate to civil party participation.

The Report is incomplete in that it fails to set out for the assessment of the reader the legal framework applicable at the ECCC, under which the Trial Chamber and the parties operated. Further, it excludes a variety of documents filed by the parties expressing their positions, often on key issues concerning civil party participation in Case 002/01⁹ – it does not cite to any procedural filings made by the Civil Party Lawyers Lead Co-Lawyers in the relevant discussions.¹⁰

The section of the Report titled “Civil Party Claims in the Case 002/01 Judgement” does not discuss the Final Claim for Reparations filed by the Civil Party Lead Co-Lawyers.¹¹ The Report expressly states that this filing had not been analysed because it is only available in French and Khmer.¹² However, there is no explanation of why and how the authors consider that this segment of the Report does justice to the parties’ positions, particularly as to the only party for which such a claim constitutes part of its mandate.

This is not the only document that is removed from their analysis. Other documents that were available only in French and Khmer seem to be absent from any discussion or the resulting analysis.¹³ There is no reference to any filings made by the Khieu Samphan Defence team during trial or appeal save footnote 5 that provides a full cite to the appeal brief that they filed against the Trial Judgement (translation available in English since 17 August 2015),¹⁴ a courtesy that was denied to the Lead Co-Lawyers’ consolidated response brief to the Defence appeal briefs, which was filed in English on 25 May 2015.

In my communication with the authors, I wondered why, apart from filings in French, there were ranges of other sets of relevant documents filed by the parties that had not been discussed in the Report. For example, the legal framework and filings on the matters concerning oath-taking by civil parties are omitted from the discussion on page 21 of the report that raises the issue.¹⁵ I asked the authors why the Report does not analyse the E57 series of filings where the parties openly debated this issue,¹⁶ or E74 – the Trial Chamber memo that sought to resolve the matter.¹⁷

This raises serious questions as to whether the Report could be considered comprehensive. Often, the omission to consider and discuss such filings has led to inaccurate generalizations.

For example, when the Report comments on the “Reliance on Civil Party Evidence”, it begins by making a value judgement for the reader that there was “continued uncertainty over the extent to which the Civil Parties would be fully fledged Parties to the proceedings or have a more limited role”.¹⁸ The statement does not refer the reader to the applicable law¹⁹ or discuss the Trial Chamber decisions, memos and in-court discussions²⁰ relating to civil party participation.

There is no uncertainty over the status of civil parties in the proceedings before the ECCC. The Glossary of the Internal Rules includes Civil Parties within the definition of the term “Party” along with the Accused, Charged Persons and the Co-Prosecutors.²¹ The unfortunate use of the term “fully fledged” party, and the resulting impression that it gives, does not reflect the reality that parties to criminal proceedings have their own distinct roles and functions, regardless of their legal status as a “Party”. (Like the Civil Parties, the Accused and the Co-Prosecutors are parties to the proceedings too; yet have different roles and sets of rights and obligations; it does not necessarily follow that one is more of a party than the other.)

The Report goes on to make another assertion that the Trial Chamber had “assured the Defense that the [victim impact] statements would not be relevant to establishing the guilt of the Accused”, but it does not contain a reference to any such decision or practice – oral or written – of the Trial Chamber, or the positions taken by the parties during trial. Considering that the Nuon Chea Defence raises this issue on appeal,²² one would assume that the Report would have taken the responsibility of showing how the authors arrived at this conclusion independently. On the contrary, it leaves the readers with neither the tools to make an objective assessment themselves nor the liberty to proceed with the remainder of this section in the Report without accepting this premise.

The methodology of the Report is also problematic. On page 20, to illustrate the Trial Chamber’s heavier reliance on Civil Party evidence throughout the judgment than was the case in the first trial – and to raise concerns over the “anemic probative value analysis of the Chamber” ²³ – the Report acknowledges reliance on the result of a quantitative analysis undertaken by the Nuon Chea defence and included in its Appeal Brief.24 Whereas the Nuon Chea defence explained in its Appeal Brief that “[t]he Defence’s analysis shows that the 31 civil parties who testified before the Chamber were cited a total of 787 times”,²⁵ the Report uses that exact same figure for a much broader category of evidence, employing the generic term of “Civil Party evidence”.²⁶

The authors do not indicate whether the figure used is intended to encompass civil party testimony, civil party applications, other documents forming part of their applications, or all of the above. One can therefore wonder how the Report can undertake a sound critique on the Chamber’s probative value analysis without taking into account the fundamental differences between the types of Civil Party evidence relied upon by the Chamber, and most notably, between oral testimony and documentary evidence.

It should also be noted that every citation to “Civil Party evidence” in Case 002 is not comparable to those with Case 001, as is assumed by the Report. The civil party representation scheme and trial management by the Trial Chamber in Case 001 were so markedly different that a direct, over-simplistic appraisal of the Case 001 Trial Judgement does not provide a fair basis for comparison.

Another illustration of errors in the Report arises from the calculations on page 27 where the authors assess the meaningfulness of victim representation pursuant to the altered Civil Party representation scheme in Case 002/01. The Report observes that “there was a significant reduction in the proportion of Civil Parties who were able to participate in the trial by providing oral testimony” noting that “less than 1 percent of admitted Civil Parties provided testimony during the proceedings for Case 002/01.” The Report concludes that “paradoxically, despite the larger and more representative number of Civil Parties admitted in Case 002/01 as compared with Case 001, proportionately their voices were less represented at the trial stage”.²⁷

In the table, they calculate this percentage out of the 3,869 civil parties that were declared admissible in Case 002. The report does not specify that, as a result of the severance, when Case 002/01 concluded, the Trial Chamber had heard evidence from the civil parties that were primarily affected and had key information on three main criminal allegations – Forced Transfer I, Forced Transfer II, and Toul Po Chrey – and to a limited extent on the historical background, the administrative and communication structure, and military structure of the Democratic Kampuchea regime.²⁸

It is one thing to have a critical view of the severance of Case 002, but another to not account for trial segmentation as a reality when conducting quantitative analysis in this context to reach categorical conclusions.

The methodology in the Report falls short of exercising the diligence and care that is required of anyone taking the task of critiquing a legal process that has not yet been concluded. One does wonder the purpose of publishing a report, which has not been peer-reviewed and has been guised as a comprehensive, independent and objective scholarly work by others, at such a critical time?

 

Marie Guiraud

International Lead Co-Lawyer for Civil Parties (*)

(*)The views expressed here are solely those of the author in her private capacity and do not in any way represent the views of the ECCC or the UNAKRT

 

[1] The Cambodia Daily, “Tribunal Judgment Slammed in Damning Report”, George Wright, 6 November 2015, available here(last accessed 3 December 2015).

[2] Phnom Penh Post, “Deep flaws in KRT’s Case 002/01: report”, Stuart White, 6 November 2015, available here (last accessed 3 December 2015).

[3] Available here (last accessed 3 December 2015).This monitoring program run by the Asia International Justice Initiative is a joint initiative of the East-West Center and the WSD HANDA Center for Human Rights and International Justice at Stanford University.

[4] Cambodia Tribunal Monitor, News, available here (last accessed 3 December 2015). This monitoring program is a consortium of academic, philanthropic, and non-profit organizations sponsored by Northwestern University School of Law Center for International Human Rights and Documentation Center of Cambodia and Robert Bosch Stiftung.

[5] See Transcript of appeal hearing in Case 002/01 – 17 November 2015, pages 10-11. available here (last accessed 3 December 2015).

[6] Victor Koppe’s Response to the Supreme Court Chamber’s Request for Explanations for his Absence from the Appeal Hearing, F30/14/1, 23 November 2015, para. 6.

[7] The conduct and practice of the trial proceedings in Case 002/01 and the applicable legal framework are officially available in the public domain; before endorsing the critiques mentioned in the report, a reading of the official documents of the parties and the court is warranted. We have attempted to include the links to each filing mentioned and discussed in the current response.

[8] These include the assessment of probative value of civil party applications, civil party testimony, victim impact statements and statements of suffering and the resulting Trial Judgement’s reliance to enter factual findings.

[9] See for example, filings by Khieu Samphan Defence team: Application for Reconsideration of the Decision not to Recall Civil Party TCCP-187, and for Review of the Procedure for Hearing Civil Parties, E250, 7 December 2012; Response to “Demande des co-avocats principaux pour les parties civiles afin de définir l’étendue de la declaration sur la souffrance des parties civiles déposantes”, E240/1, 12 November 2012; Mr. Khieu Samphan’s Objections to Admitting Certain Written Statements Proposed by the Co-Prosecutors and the Civil Parties in lieu of Oral Testimony, E208/5, 26 April 2013; filings by the Office of the Co-Prosecutors: Co-Prosecutors’ Response to Khieu Samphan’s “Application for Reconsideration of the Decision not to Recall Civil Party TCCP-187, and for Review of the Procedure for Hearing Civil Parties”, E250/1, 17 December 2012; Co-Prosecutors’ Rule 92 Submission Regarding Civil Party Testimony, E267, 21 February 2013. On two occasions, the Report does cite to the Nuon Chea Appeal Brief against Trial Judgement in Case 002/01 in the Section relating to civil party participation (footnotes 155 and 165) to add to the conclusions arrived at in the Report.

[10] See for example, Lead Co-Lawyers’ Response to Trial Chamber Directives on the Tendering into Evidence of Civil Party Written Statements & Other Documents, E223/2/7, 4 March 2013; Lead Co-Lawyers’ Consolidated Response to Defense Objections on the Admissibility of Written Statements in Lieu of Oral Testimony, E277/2, 10 June 2013; Lead Co-Lawyers’ Rule 87(4) Request to Place on the Case File and Admit into Evidence Documents which are Relevant to the Hearings on Victim Impact, E285, 16 May 2013; Lead Co-Lawyers’ Request to Call the Civil Parties’ Revised List of Civil Parties & Experts to Testify During the Hearings on Impact (with Confidential Annex), E236/5/3/1, 3 May 2013; Lead Co-Lawyers’ Observations on the Co-Prosecutors [sic] Notice to the Trial Chamber and Parties Regarding Testimony of TCE-38, E166/1/2, 14 March 2012.

[11] The Final Claim for Reparations explains the process, methodology, and the rationale behind the proposed reparations projects and their links to the harms suffered by civil parties as a result of the crimes tried in Case 002/01. The Civil Parties’ Final Claim for Reparations is cited once in footnote 231 limited to noting that all references in the Trial Judgment were in French.

[12] Report, page 31: “[s]ince all 11 reparations projects awarded had been externally funded and many had already been implemented at the time the Judgement was delivered, the Trial Chamber’s endorsement was considered by some to be a ‘rubber stamping’ exercise. Further analysis of the extent to which the Trial Chamber responded effectively to the Civil Parties’ submissions in relation to reparations is limited by the fact that at the time the Judgement was issued (and even at the time of writing this report) the Civil Parties’ final request for reparations was only available in French and Khmer language”; page 33 “[r]eferences to the reparations mechanism as ‘claimant driven’ in the Case 001 Judgement suggest that submissions from the Civil Parties appropriately form the basis of reparations determinations. However, as stated above, any analysis of the extent to which the Trial Chamber relied on the description of harm submitted by the CPLCLs in its final claim for reparations is limited by the existence of only French and Khmer language versions of the filing.” (internal citations omitted).

[13] There is no reference to any filings made by the parties in French, even when the English translation was available publicly on the ECCC website. This leads one to assume that the report did not consider the positions taken on the trial procedure by the Khieu Samphan Defence team, a team that advocates in French and the Civil Party Lead Co-Lawyers, by whom a significant number of filings in Case 002/01 were made in French.

[14] The Report does seem to provide a cursory analysis of the findings of Khieu Samphan’s individual criminal responsibility made by the Trial Chamber in its Part III dealing with the critical analysis of the Judgement.

[15] For example, Internal Rules 23(4), 24 and 31 are not mentioned.

[16] Ieng Sary’s Motion for Civil Parties to Testify under Oath if They are Permitted to Testify as to Their Knowledge of the Criminal Case, E57, 24 February 2011; Observation des parties civiles sur la motion présentée par Ieng Sary aux fins de prestation de serment par les parties civiles préalablement a leur témoignage, E57/1, 17 March 2010.

[17] Trial Chamber response to Motions E67, E57, E56, E58, E23, E59, E20, E33, E71 and E73 following Trial Management Meeting of 5 April 2011, E74, 8 April 2011.

[18] Report, page 20.

[19] See definition of “Party” in the ECCC Internal Rules (Rev.9), p. 84. See further, Internal Rules 23 (1)(a), 23(4), 21(1)(a), 23bis(4), 12 ter(1), 12 ter (5)-(6), 31(10), 55(10), 59, 72(3), 74(4), 94, 100, 106(3) provide the range of rights that are available to Civil Parties at the ECCC in the criminal proceedings. See also Code of Criminal Procedure of the Kingdom of Cambodia, Articles 134, 137, 138, 150, 268, 311, 312, 313, 356, 376, 382, 394 amongst others.

[20] See for example, Decision on Civil Party Lead Co-Lawyers’ joint request for a ruling on the standing of Civil Party Lawyers to make submissions on sentencing and directions concerning the questioning of the accused, experts and witnesses testifying on character, E72/3, 9 October 2009; Decision on Civil Party Lead Co-Lawyers’ Internal Rule 87(4) request to put before the Chamber new evidence (E289) and Khieu Samphan’s response (E289/1), E289/2, 14 June 2013; Trial Chamber memorandum entitled “Decision on Civil Party Lead Co-Lawyers’ Internal Rule 87(4) request to place on the Case File and admit new evidence relevant to the victim impact (E285), E285/1, 31 May 2013; Decision on request to recall civil part TCCP-187, for review of procedure concerning civil parties’ statements on suffering and related motions and responses (E240, E240/1, E250, F250/1, E267, E267/1 and E267/2), E267/3, 2 May 2013; Decision on objections to the admissibility of Witness, Victim and Civil Party statements and case 001 transcripts proposed by the Co-Prosecutors and Civil Party Lead Co-Lawyers, E299, 15 August 2013; Decision on Co-Prosecutors’ request to establish procedure regarding admission of documents not translated in all ECCC languages (E223/2/6) and Lead Co-Lawyers’ response to Trial Chamber directives on tendering Civil Party statements and other documents (E223/2/7 and E223/2/7/1), E223/2/6/1, 17 June 2013.

[21] ECCC Internal Rules (Rev.9), p. 84. “Party” refers to the Co-Prosecutors, the Charged Person/Accused and Civil Parties.

[22]Nuon Chea Appeal Brief, para. 187: “Victim impact testimony and statements of suffering should have been excluded entirely from the Chamber’s consideration  of the substance of the allegations. This follows from both international and domestic practice, past practice at the ECCC and the express assurances of the Trial Chamber”.

[23] Report, page 20.

[24] Report, page 20: “Civil Party evidence was cited a total of 787 times in the Case 002/01 Judgement, compared with only 131 times in the Case 001 Judgement” citing to “Judgement, supra note 1.” Footnote 155 states that “[c]alculations in table 1 include all citations to Civil Party and Witness evidence used to support factual findings in the Judgment, but excludes character witnesses. See further analysis in NC Case 002/01 Appeal, supra, note 5.”

[25] SeeNuon Chea Appeal Brief, para. 196 (emphasis added).

[26] Report, pages 20 and 21.

[27] Report, page 27.

[28] The parties had proposed their respective witnesses and civil parties as per the points of indictment set by the Trial Chamber. Therefore, the proposed civil parties were called to testify as per the trial segments organised in the interest of trial management. To exemplify simply, only civil parties that had vital information on Forced Transfer I (and were willing and able to testify) were proposed by the parties and were called by the Trial Chamber for that particular segment. None of the Cham civil parties that form a significantly large sub-group within the consolidated group of 3,869 were heard in Case 002/01 on the treatment of specific groups as their testimony would have concerned latter parts of the indictment which were then severed to Case 002/02.