Thursday, January 27, 2011

A Conversation with Theary Seng regarding Victims participating as Civil Parties against the Senior Khmer Rouge Leaders.

A Conversation with Theary Seng regarding Victims participating as Civil Parties against the Senior Khmer Rouge Leaders

praCh: Some high ranking UN senior officials are neophyte replacements and in some cases are smart but know nothing about Cambodia and so are spineless to stand up to their Cambodian counterparts. What can we do to get them on par with the current situation and let them know that if they cannot give 100% we do not need them there type of statement?

THEARY C. SENG (“TS”): Unfortunately, this is the natural cycle of work with the United Nations; like embassy staff, the UN staff move from one post to another every 1-3 years. I’d probably be a bit more generous and say most UN personnel are very smart, but you’re right, they are novices and so new to the Cambodian scene, to the politics, to the entrenched history that they lack understanding of the important nuances, subtle context and history of their work.

Generally, it is the nature of a new person to a position to defer to his/her counterpart, especially as a guest to the host country, as a matter of grace or out of uncertainty or to buy time in order to acclimate to the new situation. But others defer out of pure cowardice (‘spineless’ as you correctly called it), because they do not want to think or take a principled stance; it’s just easier to defer.

Our choices are limited as to how to respond besides raising public awareness and exerting public pressure so they feel the heat a bit to let them know that they can’t get away with it so easily, that their cowardice has impact on public interests, on Cambodian victims and the positive legacy we are trying to establish.

praCh: Issues of funding. Where are the funding coming from and who is “really funding” it? Is there a hidden agenda that benefit certain groups or individual?

TS: The international community is fully financing the establishment and work of the Extraordinary Chambers (ECCC or informally, the Khmer Rouge Tribunal), including the Cambodian personnel and side of the Court. So, even though this ECCC is “in the Courts of Cambodia”, we can’t deny the international nature of it, in terms of personnel and funding. And it raises questions of the seriousness and commitment of our government in pursuing genuine justice through this ECCC when they are not contributing financially.

Japan has been and continues to be the biggest donor, by far, to this ECCC, at something like 60% of the total budget thus far. They’re impressive in that they do so without demanding much by way of stacking the ECCC with senior Japanese personnel, unlike other governments who give so much less but demand senior posts within the ECCC for their nationals.

But the giving by the Japanese (or any other governments) is not altogether altruistic; Japan’s foreign policy is to counteract China’s; it will fund whatever China doesn’t want; China doesn’t want this ECCC. Why? China was the patron of the Khmer Rouge before 1975, during the genocide and all through the 1980s.

praCh: Civil parties lawyers - the UN co-lawyer is still in Paris and may not speak English. The Khmer co-lawyer position was never really advertised and these are the only two lawyers who have the speaking rights in court on behalf of the victims? What are your thoughts in this situation?

TS: I am deeply disturbed by the civil party process as it stands. The involvement of victims as direct parties to the criminal proceeding had immense potential which has and is being squandered. It has been ruined along the way, not by the “simple, ignorant” victims as feared, but by people who should know better, people who saw the opportunity for self-aggrandizement and exploited it at the expense of victims’ participation.

As you know, I was the one who jump-started the process by becoming the first applicant and the first civil party to be recognized by this ECCC immediately after the arrest of Nuon Chea in September 2007, when there was not yet a Victims Support Section nor a civil party application form. I even fought for what seemed to be the natural rights of a civil party to have a direct voice in the process, which I was successful in obtaining, but then limited only to Pre-Trial Chamber hearings, not for trials.

Fast forward to the present time of Case 002: in February 2010, the ECCC judges met to curb drastically the rights of civil parties when they saw how juvenile the civil party lawyers during the Duch Case 001 acted in fighting over the microphone during the public hearings and their lack of organization among themselves.
Now, no civil party can speak directly in the Court, but must be represented through his/her lawyers. And these lawyers themselves do not have the right to speak in the trial hearings, but must channel their arguments and concerns through the two “Co-Lead Lawyers”, one Cambodian (Mr. ANG Pich) and the other a newly-hired French Ms. Elisabeth Simonneau Fort, who only recently arrived this late January into Cambodia for the first time.

I met both co-lead lawyers for the first time earlier this week; I will hold my particular judgment on both of them for now, in particular as both are new to the positions. But I hope they will learn very soon the very public and the “representative” nature of their positions. That is to say, they will need to know not only the internal rules and legal arguments at minimum, but more importantly the public, the representative aspects of their roles, which require savvy-ness, humility and knowledge of public spokespersons in the field who could assist them.

Elisabeth Simonneau Fort, who is French, speaks English but not comfortably enough to hold a meeting in it, as she herself acknowledges. This is problematic, in that English is more used and understood than French among the other foreign and Cambodian civil party lawyers and concerned individuals like myself who are in the business of doing outreach and representation of public interests on these matters.

I am impressed with her strong background in social advocacy on behalf of children and women; she strikes me as very nice. But I am not sure being nice here is a desired quality; she’s functioning in a shark-infested environment. Moreover, her skills in litigation are to be seen and tested. Both require a certain degree of toughness and shrewdness which I hope she possesses in large quantity.

Yes, I heard similar sentiments and concerns that the post of the Cambodian Co-Lead Lawyer as the public voice of civil parties in the trial hearings was not well advertised or even advertised at all, raising the concern of transparency and legitimacy of the post. It’s water under the bridge now but there’s a cloud of suspicion which I hear many others expressed as well, as reflected in your question.

praCh: There are many more issues in addition to the larger concerns addressed by the OSJI reports. Can you highlight a few?

TS: I love the OSJI [Open Society Justice Initiative] reports which do a great job highlighting serious concerns attached to the ECCC, such as corruption, political interference, lack of judicial independence, funding, fair trial rights and donor/international community apathy or indifference.
These reports could give greater attention to issues surrounding civil parties and the revolving-door nature of UN personnel.

For example not enough attention has been given to the prolonged lack or disrupted leadership in certain key positions:

1. Office of Administration:

The top position of Chief Administrator formerly held by Cambodian Mr. SEAN Visoth continues to be in a state of limbo for the last two years, gingerly held by Mr. Tony KRANH as “Acting”.

The UN position of Deputy Administrator formerly held by Chinese national Ms. Michelle Lee transferred to Mr. Knut Rosandhaug.

2. Office of Co-Prosecutors:

- UN Co-Prosecutor Robert Petit is replaced by Mr. Andrew Cayley in mid-2010.

- Many UN and Cambodian Assistant Prosecutors have also left: Mr. Alex Bates, Mr. Anees Ahmed; Mr. TAN Senarong.

3. Office of Co-Investigating Judges:

- UN Co-Investigating Judge Marcel Lemonde is replaced by Dr. Siegfried Blunk.

- Other senior UN personnel within the Office of Co-Investigating Judges who have left: Case Manager Anna Austin; David Boyle.

4. Victims Support Section:

- VSS Chief Cambodian Ms. KEAT Bophal (a talented, capable former human rights officer from the UNOHCHR) was forced out of her position; lengthy vacancy then filled by Dr. Helen Jarvis with much controversy. It is now gingerly held by Mr. RONG Chhorng as “Acting”.

- VSS Deputy Chief (UN position) initially and briefly held by Gabriella Gonzales, followed a lengthy vacancy before filled by Paul Oertly for less than a year, and now vacant again.

- Andrea Gros and Kassie Neou have left. DED senior consultant Constance Oehlrich left.

5. Defense Support Section:

- DSS Chief Rupert Skilbeck replaced by Richard Rogers – two great conscientious lawyers who saw the larger picture in addition to their specific role; now both positions of Chief and Deputy Chief are vacant.

praCh: There almost 200 detention centers all over Cambodia, but only one is being preserved – the S-21. What do you think should be done with the others?

TS: Unfortunately, Tuol Sleng (S-21) is the only one of the 200 prisons preserved, for the initial purpose of Vietnamese propaganda; the others have been left to the whims of time and nature. We need to preserve as many of the authentic sites as possible from among these 200 security centers and turn them into places of memorials and learning centers—OF QUALITY, minus politics.

praCh: You are one of the 2,000 victims that can become a witness for the Prosecutors in Case 002 in the Khmer Rouge Trial. You were detained in 2 of the 10-plus detention centers listed in the Closing Order, what else should we know about you that make you stand out from the others victims?

TS: Well, I am one of only 3 accepted civil parties who could testify on Wat Tlork and Boeung Rai Security Centers, located in the East Zone. I was already 7-8 years old and have very specific memory and impressions which have great legal significance for the Co-Prosecutors and the Co-Lead Civil Party Lawyers.

Moreover, I stand in 2 capacities: as an individual civil party and as a representative of the Civil Parties of Orphans Class in the courtroom.

praCh: Everyone is a victim but to make an impact is to be within the courtroom, how can we be more involved to make a direct plea to the courtroom?

TS: As it stands, the only way for a victim to have a direct voice in the criminal proceeding against the senior Khmer Rouge leaders, the upcoming Case 002, is to be a “witness” to testify on the issues raised in the Closing Order, or to be a Civil Party to address the impact of having lived under the Khmer Rouge regime. In either case, there’s an application process; it’s not automatic. Thus, I am now advocating that I and other members of the Orphans Class be called as witnesses to testify on the substantive matters raised in the Closing Order.

As we know, whether I speak as a lawyer or whether I speak as a victim has different resonances. Whether a foreign lawyer speaks for a victim or whether a victim addresses the Chamber him-or herself makes a world of difference in terms of empowerment, satisfaction and the resonances to the larger public.

praCh: French lawyer Little Khmer, little English is this a problem since most are more literate in English and Khmer?

TS: It could be problematic as things inevitably get lost in translation.

praCh: Who is selecting the lawyers, how is the process and why isn’t there any transparency or competitions for the two lead lawyers who is represent the victims?

TS: The position of the foreign Co-Lead Lawyer was publicly advertised. As you had intimated earlier in your question, the concern is how the Cambodian Co-Lead Lawyer came into his position.

praCh: I feel like some lawyers are there just for a career op, and or just want their name in history. We need a speaker who is a public voice and is not there for personal gains. We need voices adequate and know courtroom etiquettes. I know you are more than fitting but beside you who else do you think should be there?

TS: From the beginning, I had advocated for self-organization among the civil party lawyers and their clients; but the judges unfortunately came down hard in restricting the rights and boundary of civil party participation. So, now, like it or not, we have the Co-Lead Lawyer system whereby all the interests of the civil parties will be voiced publicly in the courtroom by these 2 individuals, in cooperation with a group of some 40 other civil party lawyers who do not have a speaking voice. Legally, they should also factor in the Victims Associations representatives, like myself, in their plan, but as I see it, we have too few enlightened and generous spirits in the bunch; they would rather interpret the law in this new field in the most narrow way.

I have no problem with people working from a self-interested perspective, as long as it is not infringing on the quality of their legal representation. That is to say, these lawyers can be motivated by self-interests in fighting for the interests of the victims.

I have been very critical of the civil party lawyers, but there are a few notable exceptions who are brilliant, conscientious and effective in representing their clients (victims’) interests; it doesn’t matter whether they do it out of self interests or altruistic ones, as long as the clients’ interests are effectively being represented at the highest quality. I am fortunate to be represented by the charming Sam Sokong and Emmanuel Jacomy who are excellent. Mahdev Mohan is doing great work representing his Kampuchea Krom clients; Silke Studzinsky is coming into her own in raising awareness of sexual crimes committed during the regime. I heard that the Vietnamese-Australian woman representing the Vietnamese civil parties is also very good.

praCh: One of the Prosecutors is rumor to be related to a Cambodian high rank official who know to be very connected and a very corrupted national court system. Meaning he/she is holding two high position as one of two lead Khmer Rouge Trial Co-Prosecutors and the General Prosecutor in the national court system at the same time. Is this a problem and why or how do you think it will affect the case?

TS: If you are referring to Madam Chea Leang, the Cambodian Co-Prosecutor at the ECCC, then yes, I heard also that she is the niece of Deputy Prime Minister Sok An. To her defense, she is very, very talented and qualified, trained for 6 years, I believe in East Germany. Maybe the issue is not her qualification, but how she got to that position, the process of it all and whether she is beholden to politics in light of her political connection. Yes, she is also the General Prosecutor at the Supreme Court in the national court system; so the concern here is time: how does she have the time to hold two full time demanding positions.

praCh: Robert Petit step down just weeks after Duch’s verdict, what did you think about his representation in Duch’s trial?

TS: I am a great fan of Robert Petit! He was visionary in addition to being brilliant in his role as the UN Co-Prosecutor. He could see and did work toward the larger goals of not only convictions but reconciliation and building a more positive legacy. I believe a major reason for him being visionary and large-minded is the fact that he’s married to a (beautiful) Rwandan woman.

praCh: What did are your thoughts on Duch’s verdict?

TS: Scandalous. Not understandable in its disproportionately light sentence to the gravity of the crimes.

praCh: The UN is weak in resources, it compromises a lot. What can we do to help get them? Or what should they do to get more inform and updated?

TS: The UN is a behemoth bureaucracy comprised of lifelong bureaucrats who are by nature not activists and adverse to any risks to their financial security and plum positions. Unfortunately, it’s just the nature of this overgrown beast. We can try to reason with the individuals holding the particular positions to be more conscientious and principled, and we ourselves as you rightly noted should be more informed of matters in order to affect change vis-à-vis whatever UN constructs or institutions.

praCh: When the courtroom closes down what will happen to all the equipment? The cars the computers, many will make claims but who deserves it most?

TS: We don’t know. During the United Nations Transitional Authority in Cambodia (UNTAC), the millions of dollars of inventory disappeared into illegitimate hands. This is why now we are laying a prior claim to these assets; we are advocating that the physical assets and inventory of the ECCC be given to the Civil Parties as part of their reparations (assuming they win the case against senior KR leaders) for the provincial learning centers for which we, civil parties, are also advocating.
praCh: What do you think is the right reparations for the civil parties?

TS: We demand provincial learning centers/memorials be established in each of the provinces, preferably at an authentic site with historical significance, to be furnished by the ECCC physical assets to continue the dialogue and healing process, way after the ECCC closes operations.

praCh: What is the different between "victim" vs. "survivor" ?

TS: Some people have a difficult time using the word “victim” to describe themselves but prefer instead to be known as “survivor”. I have no problem with using both words to describe myself. There are times when it’s more appropriate to use the word “victim” than “survivor. When I describe myself as a “victim”, I do not mean to connote a state of victimhood, which is not desirable nor healthy. I use it selectively from a position of strength as a legal or political definition. In the ECCC legal process, I am a “victim” with rights to reparation. It’s more strong and appropriate to use the word “victim” rather than “survivor” here.

praCh: Some may say that the UN staff is too young - smart but know nothing of Cambodia, that they are there to "play" with high salary. What do you think?

TS: I have no problem with highly qualified people being compensated well; many of the UN personnel are smart with wide-ranging experiences. My criticism is more the nature of the UN bureaucracy and the high-and-mighty attitudes of some of these officials.

praCh: Case 003 or 004, what happens if one or two of the current 4 die(s)?

TS: The ECCC has completed Case 001 involving Duch. It is about to start the trial of Case 002 involving the 4 senior Khmer Rouge leaders (Nuon Chea, Khieu Samphan, Ieng Sary, Ieng Thirith) later this year. There is a push to have 2 additional cases 003 and 004 indicting 5 additional individuals, but politics has overtly blocked this possibility.

There is a real concern that in Case 002, one or more of the 4 senior KR leaders will die before the start or during the trial proceedings. If and when this happens, it will be devastating and raise questions about the usefulness of this ECCC and whether justice has been done.

praCh: You are 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 - you make a strong and natural witness for the prosecution. Of course, you will make a similar request via the civil party co-lead lawyers, but as you 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. What will you do or what can we do to justify this action?

TS: I really want my “day in court”. I have such a strong legal basis to become a witness, especially on the issues of Wat Tlork and Boeung Security Centers and their location within the East Zone and during the Phase III Movement. As you know, this ECCC is highly politicized. If I am not in the Witness List, it will raise questions as to why not in light of the strong legal foundation. You and others with large sphere of influence can weigh in on the matter by monitoring this process and publicly advocating and commenting on it.

praCh: 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. What can we/the people do to make sure the right person such as yourself is chosen to represent the victims?

TS: Again, use your substantial public sphere of influence to weigh in on the matter, which would be greatly appreciated.

praCh: 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. So how can we highlight certain select few who we think can best represent the victims to their attention?

TS: The civil party Co-Lead Lawyers have insurmountable challenges ahead of them. They will need to use all the resources at their disposal, e.g. individuals like myself who know the matter inside-out from the very beginning until now. The question is whether they have the humility to seek assistance, or whether they will arrogantly act as “super lawyers” removed from what the victims really want.

praCh: 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 commitment/seriousness/experience. This can turn into a serious problem. Should we leave this for the court to decide or should the people/victims take matter into their hand and find their others?

TS: As I mentioned earlier, in the bunch there exist good civil party lawyers. The victims/civil parties themselves should also monitor the process and actively engage their lawyers or else their interests and issues will be greatly compromised by the workload and lack momentum of the process.

praCh: Why are there only 2,000 clients out of 7 millions victims and not only that but only a handful will be chose to testify in court? Is the “random” lottery fair?

TS: In light of the lack of time, the newness of the foreign Co-Lead Lawyer and the large number of civil parties who could become “witnesses”, the question becomes what is the system of determining who among the 2,000+ civil parties should go on the Witness List to be forwarded to the Trial Chamber? A suggestion that was floated around was this random lottery pick of civil parties based on the team of civil party lawyers, which is absurd. The matter should be determined substantively, not on appeasing the fairness of civil party lawyers. It is still unknown as to the process of determination.

praCh: You have requested and reasons to the Co-Prosecutors to be in their list of witnesses to the Trial Chamber. I hope that other civil parties will follow your lead in proactively engaging and assisting this process with their lawyers. You not only represent yourself but the millions of victims, you give the voiceless a voice a I/we hope that the Prosecutors will make the right choice by selecting you.

TS: Yes, I have forwarded my request to the Co-Prosecutors to be on their Witness List. I am monitoring this process closely. I ask that you and others like yourself who are concern about the quality of civil party participation will join me in my advocacy for the greater voices of victims to be heard in the legal proceeding.


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