Q&A with Theary C. Seng

Culled from a set of questions posed to her from

foreign journalists

re Cases 003 and 004 last week, mid May 2011

In KI-Media

. . .

Journalist 1 (“J1”): The national co-prosecutor, Chea Leang, released a statement saying that the suspects do not fall under the jurisdiction of the court as they were not senior leaders or those most responsible for crimes committed by the Khmer Rouge. Many disagree, including the international co-prosecutor. According to court documents cited in media reports, those suspects include Sou Met and Meas Mut, commanders of the KR air force and navy respectively. They have been accused of murder, torture and forced labour, among other crimes. As a historian, do you think these men fall under the category of senior leaders or those most responsible?

Theary C. Seng (“TS”): It is not surprising that Madam Chea Leang, a niece of Deputy Prime Minister Sok An, should re-iterate the resolute position of the Prime Minister, that there should be no more prosecutions beyond the current five detainees/indictees. Hers is a politically-influenced decision with attempts of legal rationale which doesn't pass the "laugh test". Lawyers are very good at coming up with reasons, but to be credible they must pass what one of my law professors called the "laugh test"; that is, is it credible or believable?

The Extraordinary Chambers (“ECCC”, or informally the “Khmer Rouge Tribunal”) has personal jurisdiction over two groups of Khmer Rouge cadres: (i) those who held "senior" positions over the whole country and/or contributed to the national genocidal policy (e.g. a "joint criminal enterprise” or “common design or purpose”, most easily ascertained if s/he were a member of the DK Standing Committee), and—a disjunctive "and"—(ii) "those most responsible", referring to the person's potent destruction of many lives.

The definition or scope of what these two groups entailed has not been legally circumscribed; that is to say, the definition is an open question with really no precedents to rely upon, as each genocide or mass crimes can be distinguished one from the other.

Effectively, the definition will be circumscribed practically—by limited resources of money and time, as well as by larger, less invidious (and to a large extent) political considerations (by nature of the fact that the parties who negotiated the ECCC establishment are political bodies, i.e., the UN and Royal government of Cambodia).

All to say, there is no magical figure as to how many should be tried or indicted. We know it is not practical nor desirable to try everyone with a bloody hand for crimes committed during the period of 17 April 1975 to 7 January 1979. That would be in the hundreds if not thousands, and it would create social chaos and instability, working against the goals of reconciliation.

That said, however, the current five is not enough and to push for another five is not unreasonable. To argue social instability here is to employ a false pretext, which is the current position of the national co-prosecutor and of the government.

Unacceptable Political Interference – Overreach:

But what is more repulsive is the invidious interference of politics into a legal decision. In blocking further prosecutions, the Cambodian prime minister is assuming the role of a prosecutor or co-investigating judge in the ECCC when he is not a staff, an unacceptable overreach of his political position. To prosecute or not to prosecute is a judicial decision, not to be decided by politics, if we are to adhere to international standards.

Sou Met and Meas Muth: It is laughable to say that Meas Muth, a former Khmer Rouge commander holding a national position as the head of the Democratic Kampuchea Navy, in addition to his regional military role, and Sou Met, another former KR commander holding a national position of chief of DK Air Force, in addition to his regional military role, do not fall under the ECCC personal jurisdiction of "senior KR leader" or "those most responsible". Madam prosecutor Chea Leang is either engaged in self-delusion of seismic proportion or legally incompetent as the "representative of the victims"; she is failing the "laugh test".

The ECCC personal jurisdiction is a disjunctive "and", needing the men to fall into only one of the two categories. Here, they fit into both categories of "senior KR leader" and "those most responsible". "Senior KR leader" because both these men held senior NATIONAL POSITIONS and contributed materially to the "joint criminal enterprise" or common design/policy which took effect all over Democratic Kampuchea, and "those most responsible" because many, countless deaths are attributed to them. In short, YES, a resounding YES, these men easily fall under the personal jurisdiction of the ECCC.

Journalist 2 (“J2”): International co-prosecutor Andrew Cayley released a statement asking for the investigation to continue. He pointed out that, during 20 months of investigation, no field investigations were conducted at the sites, and the suspects were not interviewed. He also claimed there was not enough outreach to civil parties who might bring forward evidence. Some observers have suggested that investigators did minimal work because they did not want cases 003 and 004 to proceed, especially in light of the Cambodian government's public opposition to expanding the scope of prosecution. Do you think investigators have adequately conducted investigations?

TS: Both the Cambodian and international (UN) personnel of the ECCC Office of Co-Investigating Judges failed miserably in their duties to investigate. They are grossly negligent in failing at their most basic responsibility mandated of them by not interviewing the suspects/charged persons, by not investigating the crime sites, by not interviewing witnesses, by not keeping the general public and the victims who could be complainants or civil parties abreast of the investigative proceedings, etc.

The gross negligence and deceit surrounding Cases 003 and 004 are transparent and criminal, a frontal assault to the victims and our pursuit of honorable justice.

What I find absolutely abhorrent and deeply troubling is the complicity of the UN in all of this—this surreal Kafkaesque distortion and the deafening silence of the international and donor community. We expected, to a degree, the Cambodian personnel to align unquestioningly with the dictates of Cambodian politics, but what is totally unacceptable and sickening is the UN succumbing to the same domestic politics.

We, the Cambodian people, opened ourselves up to the great hope of the Khmer Rouge Tribunal ONLY because the United Nations got involved; we did not trust the national court. We trusted the United Nations and its iteration of (its own!) international standards, including judicial independence. We expected the UN to stand up to fair trial rights and protect judicial integrity. In Cases 003 and 004, both the Cambodian and the UN personnel have failed us—us, the victims, and us the global community. Remember, we are trying "crimes against humanity"—against you, non-Khmer, as well as the Khmers.

In sum, the investigators have simply, transparently, basically failed in their most elementary duties of investigation, e.g. visit crime sites, interview suspects/witnesses, etc.

J2: How do you think the controversy about 003/004 reflects on the court as a whole?

J1: Investigating judge Siegfried Blunk has threatened Cayley with contempt of court charges. Meanwhile, the two co-prosecutors have released public statements that express completely opposing viewpoints. Given the fractures between international staff, and between national and international staff, as well as the accusations of political interference, what do you think about the state of the tribunal at this stage? Will it be able to fulfill its mandate as an independent body able to bring those accused of being senior Khmer Rouge or those most responsible to justice?

TS: The current events of the last several weeks—the public in-fighting between the UN co-prosecutor and the UN co-investigating judge, the very public disagreement between the co-prosecutors—bode ominously for the welfare of the Khmer Rouge Tribunal. These events have greatly marred and damaged the integrity and image of the Tribunal. At this pace, the Tribunal is heading for an irreparable crash.

However, the Tribunal can yet be salvaged, but it requires the more reasonable senior voices, e.g. Dame Silvia Cartwright, French Judge Laverge, etc., of the Tribunal to publicly speak up. It also requires the donor and international community to speak up.

I have been a critic of this Tribunal, but also one of its strongest advocates because I saw and experienced the benefits of having this Tribunal in existence. I continue to believe in the Tribunal, despite the very public woes, but only if reform kicks in now. The Tribunal needs to have the more mature, reasoned voices from the UN side bring it back to equilibrium.

I hope the Tribunal will call for an internal meeting soon, and the United Nations in New York will assign a trusted envoy with steady physical presence in Cambodia to bring sanity to the currently fractious situation, which could destroy the court. The wheels are wobbly and they need to repair the wheels, especially as Case 002 is about to start.

All to say, the Tribunal is in deep trouble, in need of mature intervention from the UN headquarters and more senior reasonable voices currently within the Tribunal. In the road toward recovery and part and parcel of the reform must include the resignations of UN chief administrator Knut Rosandhaug and Judge Siegfried Blunk.

The integrity of this Extraordinary Chambers is on the line. The integrity of the United Nations is on the line. The integrity of internationalized justice is on the line. The outcome of Cases 003 and 004 is a litmus test not only for the Extraordinary Chambers and domestic Cambodia, but serves as a litmus test for international criminal justice and the reputation of the UN.

This Royal Government of Cambodia never wanted a legitimate tribunal to try the crimes of the Khmer Rouge for personal, national, regional and international reasons. The Extraordinary Chambers only came into existence due to international pressure, and only as a product of political compromises; it is a product of the lowest common denominator.

J2: The court has divulged little information about 003/004 and observers expect the cases to be dismissed. But you have listed the names of the five suspects and were the first to apply for civil party status. Why are you fighting so hard for cases 003/004? How much progress do you feel you have made?

TS: HONORABLE, QUALITY justice is my demand and the demand of all the other victims and survivors. It is not an unreasonable demand. We are not demanding a figure of 5 or 10 or 20 or 100 etc; all we are saying is that the administration of justice MUST BE OF QUALITY. What is happening with regards to Cases 003 and 004 has an impact on the QUALITY of justice.

The ECCC, in not pursuing these cases, is effectively telling us victims to accept shoddy, cheap, tattered justice. The DISRESPECT for victims—the lives lost as well as the survivors—as well as the DISRESPECT for our suffering is beyond the pale.

Moreover they do it with great DECEIT! Not only do they not recognize our suffering and our pursuit for justice, which REQUIRES TRUTH, but they do so with great arrogance and insolence.

To put it in personal terms, the memory of my mother, the memory of my father, the memory of my aunt Eap and uncle Long and the memories of 1,700,000 lives will not be soiled by these judges without a fight. They thought they could quietly make Cases 003 and 004 disappear QUIETLY. Well, in light of the events of the last several weeks, this is not going to happen. So, in this regard, this is progress. But we will not stop here; my intent is not to create a scandal for scandal's sake. The larger goal is justice in our journey of truth-seeking of the dark KR era. I have hope in the voices of the people in turning the situation around. And the voices are growing, so this is very good.

J2: Do you think there is a lot of interest in cases 003 and 004 among Cambodians today? Or do you think seeing justice done in case 002 will satisfy most victims?

TS: Interests in anything do not magically arise out of a vacuum; they need to be triggered and fostered and shaped. How can Cambodians be interested in something, e.g. KR history/tribunal, that for the last 35 years has been kept away out of public view and discourse, that was not in the school curriculum? The establishment of the ECCC or KR Tribunal TRIGGERED interests. Civil society through our public forums, e.g. on Justice and Reconciliation, TRIGGERED interests. National and international coverage of the KR history and the establishment of the court and the historic attempt of enfolding victims into the criminal process TRIGGERED interests. All to say, we have done a pretty good job in generating conversations, thus interests, in the Khmer Rouge Tribunal as it relates to Case 001 and 002. A major part of generating interests includes INFORMATION in order for discourse to take place beyond individual personal experience.

IF we are thoughtful and intentional and strategic, we can shape and TRIGGER further interests in Cases 003 and 004 as we have done in Cases 001 and 002. I see this as a major responsibility and burden I have placed on myself - how to communicate and enfold the Cambodian population, whose majority if not the whole are personally entangled in the history and crimes under scrutiny, into the process at the Tribunal. In doing so, we are enlarging the space for dialogue and public discourse in addition to other benefits of healing and education. In light of my history and the blessings I have been given in the States in terms of educational opportunities and space for healing, I see myself as a bridge between the complexity of the Tribunal and the more simple (less educated) population.

Your question on justice emphasizes the figure; our emphasis is QUALITY. Justice is not a figure, but QUALITY. We are being dished out tattered, cheap justice in Cases 003 and 004.

We, the Cambodian people, are not satisfied with the current five indictees, especially in light of the US$200,000,000 already spent on this Tribunal, for the deaths of 1,700,000 to 2,200,000 loved ones. And there's a real fear that only Duch and one or two of the Senior KR leaders in Case 002 will live through the whole criminal proceeding. This is not an equation that is acceptable to Cambodians - trying five and with the real possibility that of these five, only three or four will see the full legal justice and be the scapegoats of the KR regime. It's nonsensical math.

J1: Why do you think the Cambodian government is so opposed to bring cases 003 and 004 to trial?

TS: This Royal Government of Cambodia never wanted a legitimate tribunal to try the crimes of the Khmer Rouge for personal, national, regional and international reasons. The Extraordinary Chambers only came into existence due to international pressure, and only as a product of political compromises; it is a product of the lowest common denominator.

Personal reasons: This Hun Sen government opposes the Khmer Rouge Tribunal for personal reasons: many of the senior government officials, including himself were Khmer Rouge of whatever rank. For them it is a shameful past that should not resurface or be under scrutiny.

National reasons: The Khmer Rouge has been integrated into national politics, with Sou Met and Meas Muth, for example, holding senior military positions in the current Royal Government of Cambodia. Thus, a Khmer Rouge Tribunal is an inconvenience to political governance.

Regional/international reasons: China, a major powerhouse in Cambodian politics, never wanted the Khmer Rouge Tribunal, having been the patron of the Khmer Rouge before, during and after the regime of April 1975-Jan. 1979. All to say, since the Khmer Rouge Tribunal became inevitable, it serves this current Hun Sen regime to be the try-er of the Khmer Rouge, but limited and within its control, and at the same time to white-wash its own Khmer Rouge history. Thus, it is heralding the one Tribunal "victory" of Duch of S-21; it would serve the interests of current politics to have only Duch and one or two of the senior KR leaders in Case 2 see the light of full proceeding. The other two cases would prolong these embarrassing issues of Khmer Rouge history, opening too much space for curious journalists, filmmakers and outspoken civil society commentators to draw unflattering parallels to members of this current regime, e.g. Hor Nam Hong.