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. . . . .
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with Theary Seng
taking calls on Civil Party matters
this Thursday (Jan. 27) at 9 PM (Phnom Penh)
. . . . .
Song/lyrics by praCh
Soundtrack for Enemies of the People
Request to ECCC Co-Prosecutors
Andrew CAYLEY and CHEA Leang
to include Civil Party Theary Seng and
12 members of the Civil Parties of Orphans Class
in their List of Witnesses
to testify in Case 002 against the Senior Khmer Rouge Leaders
due Jan. 31 to the Trial Chamber.
Reconciling Peace with Justice:
Legacy of Martin Luther King, Jr. in Cambodia
Theary C. Seng
Helmut Stern Auditorium, University of Michigan
7 P.M. Thursday, 13 January 2011
Filmed for broadcast on Michigan public television.
I am deeply humbled and honored to be with you this evening in this beautiful Helmut Stern Auditorium of the University of Michigan Museum of Art as part of the celebration of the life of the reverend Dr. Martin Luther King, Jr. in this 25th Annual Symposium entitled “We the People… Realizing the Dream.”
There are several reasons for my excitement to be here with you:
RECONCILING PEACE WITH JUSTICE – MLK’s LEGACY
My topic this evening is Reconciling Peace with Justice: the Legacy of Martin Luther King, Jr. in Cambodia. Is there a dichotomy between peace and justice? Is it peace OR justice? Or is it, peace AND justice?
I come from a country mired in disproportions, contradictions and human rights abuses: when a boy steals a piece of bread, he is sent to jail; when a man kills 2 million of his countrymen, he is invited to Paris for a peace conference.
On that last day, the prison guards separated my 3 older brothers to another village; unusual. That last night, three prison guards came back to our cabin; strange, they had already chained and secured the shackles on the ankles of the adult prisoners (save my youngest brother Daravuth and me; our ankles could slip in and out; what’s the use? My job at night was to bring toilet bucket to the other immobile prisoner. We had a mentally insane woman who had cried out “I’m thirsty! I’m thirsty!” and drank from the toilet bucket before I could pull it away from her. Later they killed her by crushing her head with a coconut cruncher.)
OVERVIEW OF KRT (EXTRAORDINARY CHAMBERS)
I will briefly outline the contours of the Extraordinary Chambers or Khmer Rouge Tribunal by way of background and contextualizing how we are attempting to reconcile peace with justice.
• Cambodian civil law procedural rules
• Co-prosecutors: Chea Leang (Cambodian), Robert Petit now Andrew Cayley (UN)
• Co-Investigating Judges: You Bunleng (Cambodian), Marcel Lemonde (UN), now German Dr. Siegfried Blunk.
• Co-Lawyers (Cambodian and UN), e.g. Kar Savuth, Jacques Verges
• Complex “super-majority” to always include a foreign judge. An attempt to counter balance the fact that each level is presided by a Cambodian president and there's always one more Cambodian, e.g. Trial Chamber: 3 Cambodian, 2 UN judges presided by Cambodian judge. But there are a million different ways around this; at least, it was an attempt.
• Incomprehensible to a Cambodian teacher earning US$50/mo, even though very cheap by international standard, in comparison to other mixed/hybrid courts, e.g. Special Court for Sierre Leone, ICTY, ICTR.
• 1956 Penal Code – extending the statute of limitations to an additional 30 yrs.
• GENOCIDE Convention, 1948
- Has no statute of limitations
* any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group
- Common usage (gives gravitas to severity of crimes) vs. Legal usage (Vietnamese, Cham Muslim) – both apply here.
- no statute of limitations
- against “humanity”, not just against “Cambodians” because in the words of Dr. King who is cognizant of the interrelatedness of all communities and states. “Injustice anywhere is a threat to justice everywhere.”
- And moreover, what happened was an assault against the DIGNITY OF US ALL, not just Cambodians.
(i) “those most responsible”, and
(ii) “senior KR leaders”
- Has confessed, may be the sole scapegoat
- Closing argument highlights problem with hybrid “co-“ nature
- Verdict with controversial light sentencing this 26 July 2010
- Nuon Chea (Brother No. 2, chief of Security apparatus)
- Khieu Samphan (KR Head of State)
- Ieng Sary (KR Minister of Foreign Affairs) o Ieng Thirith (KR Minister of Social Affairs)
- OCTOGENARIAN, AILING – time is of the essence!
* Duch is also included in this case but asked to be dropped by Co-Prosecutors, a good idea. Duch will now be a star witness; the most effective way to discredit a star witness is to make him flip-flop, a possible scenario for external invidious pressure on him to change position at the Closing Arguments via his Cambodian lawyer, who boasts also to be counsel to the Prime Minister, and for the sacking of his UN French lawyer Francois Roux.
- Before he left the ECCC, UN (Canadian) Co-Prosecutor Robert Petit forwarded 5 additional names for prosecution, but consistently, expressly, publicly blocked by the Prime Minister Hun Sen, most recently and directly to UNSG Ban Ki Moon during his visit to Cambodia this November 2010. Investigation by the UN without Cambodian involvement.
KRT AS A COURT OF LAW
1. KRT as "court of law" offers LEGAL ACCOUNTABILITY.
- “Search for truth” / truth-telling intrinsic element of justice: prosecution offers a very powerful mechanism in the search for “truth”.
- Proximate, not perfect justice
- Selective, not comprehensive justice
* e.g. Not mass crimes before 17 April 1975 (Henry Kissinger for US bombings which created the conditions for the rise of the KR in radicalizing a once-rag-tag band of guerilla fighters into mass murderers); not mass crimes after 7 Jan. 1979 (K-5 Plan under Vietnamese occupation).
- State vs. Perpetrator
- Divine justice is also vertical justice (but which doesn't involve us!)
• Acts as a DETERRENCE (puts potential perpetrators on notice)
2. KRT as COURT OF LAW, LEGAL MECHANISM – greatly LIMITED.
- AVAILABILITY of evidence
- Clever lawyering in the USE of evidence
- Fair trial rights: evidential rules, procedural rules, court room decorum
- Arcane, archaic language; LEGALESE understandable to an elite few
* Documentary: Compromised or lost
* Witnesses: dead or fearful to come forward or blurry memory
* CPP former KR cadres
* China and geopolitical considerations
* 200 detention centers
* thousands of “killing fields”
* every Cambodian a victim
* Competition of victims; hierarchy of victims; “super-victim” status
* Process ruined by people who should know better
* Never accepted/taken seriously by the judges: idea conceived by people not implementers (e.g. judges); internal rules in Feb. 2010 greatly reduced rights to civil party to that of effectively “witnesses”.
* No preparation by the court, by the lawyers, civil society
* Equality of arms
* UN agenda (to deem everything a "success" even if dismal)
* Cambodian government agenda - to whitewash (erase) their own Khmer Rouge history; re-write history of them as "liberators" who tried the Khmer Rouge (but possibly limited to Duch being the sole scapegoat)
KRT AS COURT OF PUBLIC OPINION
1. KRT is NECESSARY as ‘court of law’ but NOT SUFFICIENT; moreover, DEFICIENT.
2. No formal truth and reconciliation commission to complement/supplement.
- Accountability (personal, collective, legal, moral, social)
- Peace, truth, reconciliation, healing, trauma
- Demystifying the legal system for Cambodians
• Discovering our VOICE having been voiceless for so long
• Dialogue replacing monologue – “NATIONAL DIALOGUE” – away from society of directives
• Changing mentality of always awaiting for “permission to speak”
• People are the judges
• More difficult for political manipulation
• Rare, unique window of opportunity to multiply impact of constructive engagement by shaping this broken legal mechanism.
- DONOR funding
- “STICKINESS FACTOR” – vested interest of Cambodians as a “civil party” rather than just an audience at a public forum or conference.
8. CORPUS OF EDUCATIONAL MATERIALS: court documents, testimonies (memoirs, civil party applications), media (written, TV, radio), expanding genre of KR FILMS
• Enemies of the People: Nuon Chea (Thet Sambath, Rob Lemkin)
• Facing Genocide: Khieu Samphan and Pol Pot (Story Production, Sweden)
• Judging Genocide (ABC Australia Foreign Correspondents; CNN World Untold Stories)
• Three Years, Eight Months and Twenty Days in Kampuchea (Network Ireland Television, kmf Production)
• S-21: The Khmer Rouge Death Machine (Rithy Panh)
• Bophana: a Cambodian Tragedy (Rithy Panh)
• New Year Baby (Socheata Peou), etc.
9. PROVINCIAL LEARNING CENTERS furnished with ECCC PHYSICAL ASSETS / INVENTORY: Legacy of learning, legacy of dialogue – VIRTUAL TRIBUNAL, Shoah Foundation testimonies
• Building a culture of memory – memorials: not forget but know what and what not to memorialize (remember), to honor. Currently, the resources are concentrated in Phnom Penh with NO efforts to preserve and protect the other 200 detention centers and authentic sites with historical significance. Tuol Sleng (S-21) and Choeung Ek were not the only security center and "killing field" of this KR regime.
10. The most special impact for me is the standardizing of trauma language and conversations in Cambodian society. What was taboo 3 years ago are now talked about with less shame and reluctance. Three years ago, my staff accused me of thinking every Cambodian “crazy” by broaching these topics of trauma. Now, they are counseling others using the Trauma Handbook and posters taken from this Trauma Handbook. My own very personal emotional turmoil is now serving to my advantage in my interaction with other traumatized people.
11. PROCESS… a JOURNEY of 1,000 steps… now at step 38
LEGACY FOR CAMBODIANS
The worst legacy for Cambodia is a mentality of irreversible cynicism. This is a real possibility if we do not engage this ECCC process to help shape it.
It is uncertain/questionable whether ECCC will have positive impact on the national court. If anything, it has created a greater appetite of the Cambodian judges (paid US$5,000/mo to $3-400/mo) once they return to the national courts. Positive Legacies are found in the “court of public opinion” as delineated above.
LEGACY FOR INTERNATIONAL JUSTICE
1. VICTIMS’ PARTICIPATION
• ECCC is the first mixed/international court to allow “victims” to become a party – CIVIL PARTY – to the case in the criminal proceeding.
• Despite its problems and challenges, this is a welcome trend, to have the court be at the “scene of the crime”, inside the country and not in another country, e.g. Rwanda crimes tried in neighboring Tanzania, or crimes tried in The Hague - leaving out the population directly affected.
• For the benefits of the population (as mentioned above, court of public opinion) in providing for a MORE MEANINGFUL, MORE COMPREHENSIVE JUSTICE:
- Legal justice which is limited and narrow by its nature, in particular in trying mass crimes: because of symbolic justice, selective justice, vertical justice.
- Social justice
- Poetic justice - punishment is more than physical imprisonment.
- Moves our human approximation / proximate of justice closer toward the unattainable goal of perfect justice, but nonetheless a destination.
• Involvement of local judicial actors, LESS EXPENSIVE.
3. If possible in the political negotiation, DO AWAY with CO-POSITIONS, e.g. co-prosecutors, co-investigating judges, co-lawyers, etc. The problem was highlighted by the very dramatic public disagreement, contrary positions of Duch’s co-lawyers – French lawyer Francois Roux and Cambodian lawyer Kar Savuth at the Closing Arguments.
4. All these courts have NATIONAL RECONCILIATION as a stated goal but not given serious consideration. Thus, this goal must be better thought through and given much greater significance in the MANIFESTATION of it.
• Outreach for victims/survivors will need to be reassessed and be better prepared with READY AVAILABLE FUNDING from the get-go.
In sum, only hindsight and a bit of distance will allow us to really assess the legacy / implications of this ECCC for Cambodia and for international law. However, we know enough of where we need to shape or re-direct the process in order to bring about POSITIVE legacies/impacts from this very flawed construct that is the ECCC.
One area we can impact the greatest change and bring about positive legacies is in the “court of public opinion”, where the people are the “judges” and are not inhibited by rules of procedure, evidentiary rules or the archaic, arcane legal language, preserved for the understanding of a few.
I’ve been emphasizing the importance of the ECCC in the court of public opinion. These benefits come from the fact there is a court of law. As such, there are several novel and challenging issues of legal nature which are being grappled by this Court. As the legal legacy is still being written, we should all weigh in from our respective fields and from whatever part of the world we find ourselves.
For the last 30 years since the end of the Khmer Rouge regime, we have had a fragile peace in the absence of war or tension. Some have argued that we need to preserve this peace by doing away with justice, for legal prosecution will break this peace.
However, we know that there are times when “creative tension” is necessary to bring about positive change. In Cambodia, we have this “creative tension” in the form of the Khmer Rouge Tribunal in helping us to reconcile our past with our present, to reconcile peace with justice – a peace that is more just the absence of war but embraces “creative tension” and a justice that goes beyond legal accountability to embrace social justice, poetic justice, horizontal/vertical justice and other transitional justice mechanisms and values such as healing, reconciliation and forgiveness.
Simply put: ‘Peace’ or ‘justice’ is a false choice. It is peace with justice.
The legacy of the reverend Dr. Martin Luther King, Jr. in all of this is not only his giving eloquence to these values but it is a living legacy that reverberates in the lives of generations since the Civil Rights movement and not limited to America but all over the world, even as far away as the killing fields of Cambodia.
There is hope in the despair and the challenges.
Thus, I conclude with this encouragement, in the words of Dr. King: “The arc of the moral universe is long, but it bends towards justice."
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