I. Introduction:
On November 20, 2008, our group of the Logics and Critical Thinking class had an honor to join a presentation by a group of people from the Extra-ordinary Chamber in the Court of Cambodia (ECCC) on a topic about the prosecution of people behind the genocidal acts during the Khmer Rouge regime. The presentation focused mainly on the background of the Khmer Rouge regime, the creation of ECCC, its structure, its procedure, its key features, some of its challenges, defense structure, and the defense rights of the accused.
Il. Background of the Democratic Kampuchea
After five years of civil wars (1970-1975), April 1975 marked the starting point of the Khmer Rouge regime. On April 17, Cambodian people were evacuated from major cities to country sides by the Khmer Rouge soldiers telling that the US would very soon bomb Phnom Penh city. Also, all foreigners in Cambodia were expelled to go back to their own countries. After being evacuated, people were living a very hard life. For example, there was an abolition of property ownership and the banning of money and religions. They were forced to work on the farmland with little time to rest and meager food to eat. As a result, the population confronted starvation and other medical problems, leading to many deaths. Besides, the presenter also talked about the S21 Security Centre, of which Duch was the prison commander. It was the place where 13,000 people were captured, interrogated, tortured, and killed. Furthermore, in December 1978, the Khmer Rouge invaded part of Vietnam in the purpose of fighting back the land over dispute with VN. Vietnamese soldier fought back and won the war, causing the collapse of the Khmer Rouge regime on January 7, 1979.
III. Creation of ECCC
In 2003, ECCC was settled in order, firstly, to bring formal justice to Cambodian people who lost their lives and relatives, secondly, to bring better understanding over the issues to the next generations and lastly, to leave some forms of legacy, which are the common aims on both national and international levels.
IV. Structure of ECCC
The structure of ECCC is as follows: Judges (Co-investigating Judges, Pre-trial Chamber, Trial Chamber, and Supreme Court), Chambers (3 Cambodians and 2 internationals), Co-prosecutors (1 Cambodian and 1 international), Victims, Witnesses, and the Accused. Regarding this structure, it was mentioned that Cambodian people are the majority in most positions. Anyway, the structure is based on the civil law and the traditional system of Cambodian societies. And all processes in ECCC has a huge degree of flexibility; everything is not “terribly” sure yet.
V. Procedure of ECCC
Initially, there is the preliminary investigation, which is carried by the prosecutors. In this regard, it mainly depends on the information and data collected for some years by the Documentation Center of Cambodia (DC-Cam). Next is introductory submission, in which the prosecutors compile all the documents and submit them to the court. After that, the document will be examined and the judicial investigation will start. Then, the judges will issue the closing order, with which the accused do not have to agree. And the steps of Trials and Appeal follow respectively.
VI. Key Features
The first key features of ECCC is supermajority, which means in order for each decision to be made there must be majority + 1. For instance, if there are 7 judges, 5 must agree on the motion so that the decision can be officially accepted. Other key features are civil parties, which represent victims, and investigating judges.
As the genocide happened nearly 30 years ago, time is the first problem. This is because, for example, it is hard for victims or witnesses to recall back stories that they experienced at the time the crime was being committed. Another challenge is the old age of the accused and witnesses. Nuon Chea, Brother Number 2, who is alleged for war crime and crime against humanity, is 82 years old already—the age so old that his death in a day or two might not be a surprise at all. Besides, it is the presumption of guilt. Since the crime is serious—millions of lives were taken, and most Cambodians absolutely abhors the Pol Pot regime, although, for some, even without the clear knowledge of what the truth and the real problems are, guilt is automatically presumed by the majority. Transparency is another issue because, as said by many, everything has been done behind closed door. That is, not everyone has access to witness how everything is done inside the court. Other problems are as: Cambodian judiciary and corruption and mismanagement.
VIII. Defense Structure
In the defense structure of ECCC, there are co-lawyers, defense team, and defense support section. For co-lawyers, one is Cambodian; another is foreign. For defense team, it includes consultant lawyers, interns, and experts. On the other hand, defense support section has the roles of providing support to the defense team, give legal support and administrative support, and conduct various trainings for the team.
IX. Defense Rights
Defense rights refer to the rights and freedom the accused are supposed to have. Everything is done to ensure just trial and fairness for the accused. In this point, ICCPR rights were mentioned. In ICCPR rights, there is the presumption of innocence, which means “the accused is innocent until the prosecution proves otherwise.” Also, before being brought to face the trial, the accused must be fully notified of the charge in advance. Adequate time and facilities the defendants find necessary to prove against the accusation are also given. They have rights to enough resources—to lawyers to defense the case and to time to prepare everything so that the defense can be made in the best interests of the accused. Other rights liable to the defendants are as: a right to a not-delayed trial, to a trial in their presence, and so on.
X. The Accused People and Their Allegation
1. Kang Gech Iev (known as Duch)
Allegation: - Crime against humanity
- War Crime
2. Nuon Chea
Allegation: - Crime against humanity
- War Crime
3. Kiev Somphorn
Allegation: - Crime against humanity
- War Crime
4. Ieng Sary
Allegation: - Grave breaches
- Crime against humanity
5. Ieng Thirith
Allegation: - Crime against humanity
It was definitely a great opportunity for us, students, to learn what every Cambodian is expected to know. The whole time before stepping into Hall A last Thursday and right after stepping out of that same room, although with only about one and a half hour different, bear a tremendous increase in terms of our understanding about one of the hottest issues in Cambodia as well as in the world as a whole. That is, after that informative presentation, we have gained a lot of knowledge about how everything is processed in the current Khmer Rouge Tribunal, the historical event that we used to only hear and know very little about.
By:
An Polin
Chhom Sotheary
Tang Rothana
Yi Longdy
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