Excerpt of

Request to ECCC Co-Prosecutors

Andrew Cayley and Chea Leang

to include Civil Party Theary Seng

(and 12 Members of Civil Parties of Orphans Class)

in their Witness List to the Trial Chamber, due 31 Jan. 2011.

In KI - Media

. . . . .

NOTE to civil parties: If you are interested in testifying, please assist your civil party lawyer by drafting your own application by following the Order to File Material in Preparation for Trial for Case 002 issued by the Trial Chamber this 17 Jan 2011 in light of the Closing Order. Both are PUBLIC documents, made available at KI-Media.

I am informed that the civil parties' French co-lead lawyer Elisabeth Simonneau Fort has recently arrived into Cambodia and will hold a meeting with all civil party lawyers on Tuesday, 25 Jan. 2011.

- Theary, 20 Jan. 2011 noon

. . . . .

** I forgot to include in my original submission this additional information, but just now informed the UN Co-Prosecutor that I am one of only 3 civil parties as stated in the Closing Order who could testify on Wat Tlork Security Center and the only one to its nexus, Boeung Rai Security Center, and also as part of the Phase III East Zone Movement.

Moreover, as the person who started and shaped the victim-civil party movement since the ECCC came into operation in mid-2006, the representative of the only class (Civil Parties of Orphans Class), and the articulate public voice of victims - I'd make a strong and natural witness for the prosecution.

Of course, I will make a similar request via the civil party co-lead lawyers, but as I described earlier, the request is stronger through the co-prosecutors and the civil party lawyers lack adequate resources and coordination, with the newly-hired UN co-lead lawyer yet to arrive into Cambodia.

The Co-Prosecutors, as my (victims') representatives, have the duty to defend and advocate for the rights and benefits of victims effectively and comprehensively, especially in light of my long engagement and public role in the matter.

- Theary Seng, Phnom Penh, 19 Jan. 2011

_________________

Prologue to Excerpt

On a more consistent basis, I will be writing a column to be published on KI-Media, my personal website www.thearyseng.com, my Facebook (currently at 2,200 "friends") and other outlets on the Extraordinary Chambers (ECCC) in my capacity not only as a US-trained lawyer and civil society leader engaging Cambodians on the work of justice, peace and reconciliation in light of the ECCC, but more importantly as a Civil Party in Case 002 against the Senior Khmer Rouge leaders (the heart of the Extraordinary Chambers), the first victim to be recognized as such by and to testify in the ECCC.

There is an important deadline coming up for the Co-Prosecutors, 15 days after the final decision on the Closing Order (hence, end of this month of Jan. 31) to submit their list of witnesses to testify on the substantive facts and laws (crimes) against the senior Khmer Rouge leaders as set out in the Case 002 Closing Order to the Trial Chamber.

It it imperative that many voices of the 2,000+ accepted civil parties be given this role to testify as witnesses, as this is now the only means for us to have a direct voice in the criminal proceeding. This, however, requires that the names of the civil parties and their reasons as related to the crimes in the Closing Order be established and forwarded to the ECCC Trial Chamber for deliberation and acceptance. The strongest case is if the civil party's name is included in the list of witnesses of the Co-Prosecutors, due 12-13 days from now.

But if not in the list of the Co-Prosecutors, the civil party has a second chance if it is included in the list of witnesses to be submitted by the Civil Party Co-Lead Lawyers, Mr. ANG Pich and Ms. Elisabeth SIMONNEAU FORT, the deadline being mid-February 2011, 15 days after the deadline of the Co-Prosecutors.

It is highly questionable if the civil parties' lawyers -- both Khmer and foreign -- are able and capable to handle and represent effectively 2,000+ clients and still make the deadline of mid-February 2011.

First, the UN French Co-Lead Lawyer has yet to arrive in Cambodia and start her position. She is expected to arrive the end of January 2011 which will then give her 15 days to settle into a new home, new country, master the learning curve of general knowledge of Cambodia, then the specific history and rules of the ECCC, then the very specific nature of civil parties representation and details of 2,000+ clients. There is a rumor that she only speaks French and not Khmer or English. I wish her luck!

True, the Co-Lead Lawyers work in cooperation with a coterie of both Khmer and foreign civil party lawyers, approx. 40 total. The Khmer lawyers are limited to less than 10 persons; the foreign lawyers are either not based in Cambodia tending to their full-time professions in their respective country.  Or if based in Cambodia full-time, it is questionable whether they "get" it for various reasons, e.g. language barriers, lack of  contextual understanding/commitment/seriousness/experience.  Or it's just an easy resume-building with their names splashed on all the submitted briefs archived for history without having to understand or do quality work.

To address the insurmountable problems, it is suggested that the names of the civil parties to be forwarded to the Trial Chamber via the Co-Lead Lawyers be based on a quota system: for example, [ 5 ] names of civil parties from each of the 11 civil party lawyer teams.

This is the most absurd suggestion for obvious reasons, the main ones being:

One, witnesses should be determined based on their ability to testify on a substantive point of fact or law of the Closing Order, not based a random lottery picking to satisfy the fairness/unfairness of lawyers. The interests of justice and of the civil parties (and not the lawyers!) should be paramount.

Two, each team of civil party lawyers has clients ranging from 1 individual to 700+ individuals.

Three, it is a lazy, fatalistic method of handling a challenge without even attempting to tackle the problem, that is, actually do work by going through the files of the victim-clients in light of the Closing Order.

By way of example, I am here publishing an excerpt of only my personal request and reasons to the Co-Prosecutors to be in their list of witnesses to the Trial Chamber with the hope that other civil parties will follow my lead in proactively engaging and assisting this process with their lawyers.

________________
- Theary C. SENG, Civil Party and representative of Civil Parties of Orphans Class (18 Jan. 2011, Phnom Penh).

Excerpt

I. Introduction

1. I, Theary C. SENG in my personal capacity as the first applicant and first-recognized Civil Party by the Extraordinary Chambers (“ECCC”) (see http://www.thearyseng.com/eccc-civil-party, in particular http://www.eccc.gov.kh/english/cabinet/courtDoc/176/C22_I_62_EN.pdf) am requesting to have my name be included in the List of Witnesses of the Co-Prosecutors to be submitted to the ECCC Trial Chamber to testify in the criminal proceeding against the senior Khmer Rouge leaders—Nuon Chea, Khieu Samphan, Ieng Sary and his wife Ieng Thirith—of Case 002 for the reasons delineated below.

2. I, Theary C. SENG in my capacity as founder and president of the Association of Khmer Rouge Victims in Cambodia (“Victims Association”), the first Cambodia-based victim association to be registered with the Ministry of Interior and the first to be accepted by the ECCC Victims Support Section, and in my capacity as the Representative of the Civil Parties of Orphans Class, a sub-group of the Victims Association whose inception preceded even the formal formation of the Victims Association, am requesting to have 12 members of the Orphans Class who are ECCC-recognized Civil Parties, listed below and in the attached Summary Annex, also be included in the List of Witnesses of the Co-Prosecutors for the reasons delineated below. Most members of the Civil Parties of Orphans listed me in their civil party application as their Representative.

3. In both capacities, herein, the “Applicant”.

4. It should be noted that the Applicant is nationally and internationally known for her tireless efforts to engage the Cambodian population in-country and in the diasporas on victims participation as (i) witness, (ii) complainant, or the novel (iii) civil party. See http://www.thearyseng.com/peace-builder, in particular http://thearyseng.com/peace-builder/42/54 and http://thearyseng.com/victims-association. She is the subject of countless documentary films, many mentioning her roles as the first civil party and representative of the Civil Parties of Orphans Class, notably Facing Genocide (Story Production, Sweden), Judging Genocide (ABC Australia, CNN World Untold Stories), and another in-production by German filmmaker Marc Eberle with thousands of hours of footage include outreach efforts by the Applicant spanning the last 3-4 years.

II. Witness List

Witness No. 1 – Ms. Theary C. SENG

5. Theary C. SENG is a child victim of forced Movement of the Population from Phnom Penh – Phase I (Closing Order: Part One VIII.A. para. 221-261), during which she suffered inter alia the “disappearance”/murder of her father KAO Im, a high-ranking military commander of the Lon Nol regime; Movement of the Population from the East Zone – Phase III (Closing Order: Part One VIII.A. para. 283-294), during which she suffered inter alia illegal arrest and illegal detention at Wat Tlork Security Center (Closing Order: Part One VIII.C. para. 664-666) later transferred to Boeung Rai Security Center (Closing Order VIII.C. para. 665) where she underwent Compulsory Labor as a child, witnessed the murder of a mentally insane woman and suffered the death of her mother and other prisoners, both security centers within the heart of the notorious East Zone during the height of the purges.

6. Theary C. SENG, as a child from age 4–8, is a WITNESS to CRIMES AGAINST HUMANITY “whereby ranking officers and officials of the Khmer Republic (as well as their subordinates and family members) were targeted because they were considered likely to be hostile to the CPK”

- Legal elements of MURDER of father, mother, mentally insane woman, and other prisoners

· Wat Tlork and Boeung Rai Security Centers in the East Zone

o Para. 1376. “As regards security centers, for the entire period of the regime, the personnel of these centers, both directly and indirectly, caused the death of a large number of detainees. In most instances, the prisoners were killed deliberately through a variety of means, including summary execution in or near the security centers. Moreover, many prisoners died as a result of torture and ill-treatment.”

o Murder of Mother SENG Chen Eat.

o Murder of mentally insane woman.

o Murders of other prisoners. The Documentation Center of Cambodia estimated that 30,000 lives were lost in Boeung Rai Security Center.

· Phase I Movement

o Murder of Father KAO Im

- Legal elements of EXTERMINATION (para. 1381)

· Wat Tlork and Boeung Rai Security Centers in the East Zone

o Para. 1387. Inhuman conditions. As a child, Theary Seng was forced to pick dried animal manures among the countless mass graves.

o Every night, the prison guards shackled the ankles of prisoners, including her juvenile brothers.

· Phase I Movement – during the exodus out of Phnom Penh and during the temporary stay at Wat Champa pagoda, sea of human suffering (starvation, lack of medical treatment, shelter etc.)

- Legal elements of ENSLAVEMENT (para. 1391)

· Wat Tlork and Boeung Rai Security Centers

o Para. 1392. “As regards the actus reus, the personnel of these cooperatives, worksites and security centers deliberately exercised total control and all of the powers attaching to the right of ownership over of the persons placed there, without them being given any real right to agree.”

o Para. 1394. “Moreover, in all the places mentioned above, including security centers, the victims were forced to perform work without their consent, unpaid and without the opportunity to reap the direct benefits thereof. Work venues, duration and schedules were imposed. The victims could not refuse to perform any work assigned to them. The work, coupled with the constraints described above, stripped them of their free will, and amounts to enslavement.”

- Legal elements of IMPRISONMENT (para. 1402)

· Wat Tlork and Boeung Rai Security Centers

o Para. 1403. “As regards the actus reus, the personnel of these sites intentionally imposed serious, arbitrary deprivation of liberty on the detainees, in violation of legal guarantees.”

o As set out in the “Factual Findings – Joint Criminal Enterprise” section, “the network of security centers replaced the judicial system in order to facilitate detention based on the presumed dangerousness of individuals as perceived by the CPK authorities”, the “dangerousness of individuals” include Theary Seng a child victim only seven years old.

- Legal elements of TORTURE (para. 1408)

· Wat Tlork and Boeung Rai Security Centers

o Para. 1409. “As regards the actus reus, on numerous occasions, CPK cadres through their acts or omissions, deliberately inflicted severe harm and suffering, both physical and mental, during interrogations.” Theary Seng witnessed the torture of a mentally insane woman in the courtyard of one the two Security Prisons where she was detained as a child of 7 years old.

o Para. 1410. “Taking account of all the objective and subjective elements of the case, the treatment to which these people were subjected was so severe that it amounts to torture: the methods used, coupled with the inhumane conditions and the context of terror in the security centers, had very serious physical and psychological effects, and in some cases, resulted in death. Torture was both premeditated and institutionalized as the centerpiece of CPK policy against ‘enemies’”, including that of Theary Seng, a child of seven years old.

· As a child living in the East Zone, Theary Seng was tortured when a Khmer Rouge village authority pierced her right eye and almost blinded her; the scar on her right eye lid is visible to this day.

- Legal elements of POLITICAL PERSECUTION

· Wat Tlork and Boeung Rai Security Centers

o Para. 1417. “The CPK authorities identified several groups as “enemies” based on their real or perceived political beliefs or political opposition to those wielding power within the CPK. Some of these categories of people, such as former ranking civilian and military personnel of the Khmer Republic, were automatically excluded from the common purpose of building socialism. As for junior officials of the former regime, some were arrested immediately after the CPK took power, because of their allegiance to the previous government, and many were executed at security centers… The entire population remaining in towns after the CPK came to power was labeled as ‘new people’ or ‘17 April people’”.

o Para. 1424

· Phase I Movement – Theary Seng as a child of 4 years old was forced with her maternal family members to exit her birth city of Phnom Penh; they were targeted for being a member of the “new people”, especially her father was a high-ranking military officer.

- Legal elements of OTHER INHUMANE ACTS through “Attacks Against Human Dignity”

· Wat Tlork and Boeung Rai Security Centers and Phase 1 Movement.

o Para. 1435. “Regarding the actus reus, by depriving the civilian population of adequate food, shelter, medical assistance, and minimum sanitary conditions, the CPK authorities inflicted on victim serious mental and physical suffering and injury, as well as a serious attack on human dignity of similar gravity to other crimes against humanity.”

- Legal elements of FORCED TRANSFER - Other Inhumane Acts Through Forced Transfer

· Phase I from Phnom Penh and Phase III within East Zone

o Para. 1448. “Considering the facts set out in the sections relating to the three phases of the movement of the population, the material facts of the crime against humanity of other inhumane acts through forced transfer have been established. In particular relating to the movement of the population from the city of Phnom Penh following the entry of CPK troops on 17 April 1975 (phase 1) […], and the movement of the population from the East Zone from late 1977 until late 1978 (phase 3) [for Theary Seng, to Wat Tlork and then Boeung Rai Security Centers] – the places where they lawfully resided without grounds permitted by international law.”

o Para. 1449. “With respect to the actus reus, victims endured great suffering, or serious mental or physical suffering or injury or a serious attack on human dignity of similar gravity to other crimes against humanity.”

- Legal elements to FORCED DISAPPEARANCES – Other Inhumane Acts Through Enforced Disappearances

· Wat Tlork and Boeung Rai Security Centers and Phase I when father "disappeared"

o Para. 1470

7. Theary C. SENG, as a child from age 4–8, is a witness to crimes in the Cambodian Penal Code 1956 - charges of MURDER and TORTURE of father KAO Im, mother SENG Chen Eat and torture of Theary Seng (piercing of her eye) and that of mentally insane woman when in prison.

8. Theary C. SENG, in her individual capacity, makes the perfect witness to address the substantive matters delineated above, especially as a child victim and the associated set of rights violated in the crimes and matters abovementioned.

9. Moreover, Theary Seng gives a powerful, known voice and articulate representation to countless million other Cambodian victims by nature of her consistent, persistent work with victims, her very public platform and writings as well as her law training.

10. Theary Seng is the author of Daughter of the Killing Fields (London, 2005), a memoir with particular focus on her experience during the Khmer Rouge years. This memoir will be updated and augmented with additional chapters to be published with Seven Stories Press (New York, late 2011).