William and Mary Law School

Two Courts in Two Weeks

Hello again everyone. The past two weekends I have stayed in Phnom Penh and it has been nice to relax a bit and stay in the city. Since Andrea left this past week, we spent two weekends exploring and visiting some of the local sites and restaurants we haven’t seen because of our continuous traveling.

Last week we were lucky to get the day off and attend the pre-trial hearings at the Extraordinary Chambers in the Courts of Cambodia. The ECCC is a UN sponsored court established to prosecute the cases against leaders of the Khmer rouge. Case 001 was against Duch, the former chairman of the Khmer Rouge S-21 prison. Duch was found guilty on all counts and sentenced to 35 years in prison. His sentence was later reduced to 30 years due to a technical issue regarding his initial arrest/incarceration. The second trial has just begun and the defendants are four ex-Khmer Rouge leaders. The first defendant is Nuon Chea, the former deputy secretary of the Communist Party of Kampuchea. Ieng Saray, the former Deputy Prime Minister of Foreign affairs and his wife Ieng Thirith, the former Minister of Social Affairs are also on trial and the final defendant is Khieu Samphan  who was the former Khmer Rouge Head of State. The youngest of these defendants is 79 years old and the UN and Cambodia have provided all four  all with medical care above and beyond that received my most Khmer nationals.  The initial hearings were held to deal with pre-trial matters. The largest issue during these hearings, which lasted three days, centered on Ieng Saray and a pardon he received in 1996. We attended the second day of the hearings, and attorneys on both sides made statements concerning the validity or lack thereof of Mr. Ieng Saray’s pardon. In truth, the defense had a better argument as Mr. Ieng Saray’s pardon was given after the country had achieved peace and the Khmer Rouge was during its final breakdown. Despite the validity of their statements, I thought the defense’s arguments were poorly delivered and was quite surprise by the performance of the one US attorney on the US team.

In trial team, our coach and team members discover our ticks and then begin tallying them on the board during our practice directs, crosses, openings and closings.  If we hit five, we owe the team some pizzas. Although buying pizzas for friends is not generally a bad thing, doing so a few times for 36 people on a law student’s budget (non-existent) makes you erase your tick fairly quickly. During the course of the defense attorney’s speech I couldn’t help but wonder at the sheer number of pizzas he would have had to buy after his speech. I was also confused by the consistent use of idioms and proverbs. Proverbs, especially fairly obsolete ones, are difficult for native English speakers to understand and are often not encouraged in court statements. The defense attorney used several such proverbs. If this were an American court, the use may have been forgivable. This, however, was no American court and the attorney’s statements and speeches were translated into 2 other languages: Khmer and French. By the confused looks on the faces of many of the Khmer students and spectators, I assume that much of the attorney’s speech was lost in translation. We stayed for several hours at the trial and I think it was a great experience to see an international tribunal at work. Reading up on the trial and the future of the court, as well as personal experience, have however made me wonder whether the trial is actually doing anything positive for the Khmer people, or whether it is just a show trial for the international community.

When Andrea and I informed our Khmer co-workers that we were going to the ECCC they did not know what we meant. It took some explaining and google images for them to understand that we were actually going to the international tribunal. Although they all smiled and nodded afterwards, they did not have the slightest bit of curiosity about the trial and only seemed to have the barest knowledge about the court. Even our tuk-tuk driver did not know where the court was located, and we got quite lost since the building is a ways outside of the city. The room left for the public to view the proceedings was also only big enough to accommodate about 500 people, and the seats were not filled. This general apathy and lack of knowledge has shocked me during the course of my experience in Cambodia.

 About a week ago, Andrea and I went out with some of our Khmer co-workers for the day. It was a beautiful Sunday and we told them to take us wherever they wanted. Apparently, something became lost in translation and our second stop was to Cheung Ek, the killing fields, a place we had already visited our firs t week here. Like most places of genocide, the killing fields tend to sap a person of all energy and leave one feeling quite melancholy afterwards. Our co-workers, however, had never been and so, surprised, Andrea and I decided to be their guides during the trip. Although they were sufficiently respectful, our co-workers seemed strangely separate and autonomous from the horror of those grave sites. In truth, Andrea and I seemed more affected by the atmosphere than they did. They even smiled quite regularly and laughed; actions which I found little energy for. I believe my co-workers present a very typical picture of young Cambodians and their perceptions of the only 30 year old terror that tore apart their nation. Unfortunately, the schools teach them little about that portion of history and the students do not seem to take the initiative to learn more. From what I have heard, parents and elders also choose not to speak of the Khmer Rouge period and children growing up only knowing about Toul Seng and Cheung Ek as tourist sites. One of my friends suggested that their treatment of that period of their history is related to their general customs. When things are uncomfortable or awkward, the Khmer people tend to laugh and diffuse the situation, no matter how bad it is. In the same sense, it seems they laugh at and diffuse this black mark in their history.

As a Jew, it is difficult for me to understand that impetus. Even though I am not religious at all, as an Eastern European immigrant my family well remembers the Holocaust. Although none of my immediate family was captured, they all had to hide out in trains, abandoned houses and basement chutes to survive and escape capture. We do not often discuss the holocaust, but it is something every generation is educated about. When I traveled to Auschwitz, I don’t remember laughing; I remember crying while standing next to a pool where the crematorium’s ashes still floated on the murky surface and where bone fragments littered the earth. In fact, my several Jewish friends, my professor and I hardly spoke during the visit, and after leaving the grounds only wanted to feel alive again and to witness some good in humanity. We never partied quite as hard during our trip as we did the night after seeing Auschwitz. My Khmer co-workers did not seem to experience anywhere near that level of despair when visiting Cheung Ek, a fact that is even more amazing given the temporal proximity of the Khmer Rouge government and the civil war. I am not sure whether this response to history is a way of avoiding or overcoming the Khmer Rouge period, but it is likely that the ECCC trials will end with case 002, both because of Hun Sen’s push for an end, and because of a general apathy regarding their continuation from the general population.

In addition to the ECCC, we also had the opportunity to visit a Cambodian Court of First Instance, the Khmer version of a trial court. The security on the courts was fairly lax, and we barely even had to show our id’s to enter, a surprising fact given that legal proceedings are not open to the public in Cambodia. We found our Cambodian counsel on the fifth floor of the court and got to sit in on what I can only refer to as a judicial deposition. Basically, the judge asked our client questions regarding their pending adoptions and took down their statements. I have yet to get over the contradictions in the Khmer culture. While everyone wears button down shirts and business casual attire on a regular basis, they couple these outfits with flip flops or open toed sandals. The judge also answered her phone twice during the meeting, as did the scribe and our own Khmer council. Another interesting fact about the Khmer legal system is that every document submitted to the courts or the Ministries must be signed with a fingerprint. This actually seems like a fairly creative and foolproof way to ensure limitations on fraudulent documents and statements. However, I am fairly sure that the Khmer legal system does not yet have the capability to utilize an electronic database and ensure that fingerprints match the name of the signatories to a document. As a result, I am not sure what the purpose of the fingerprint system is, although I think in several years it will be quite effective as Cambodia increases its technological capacity.

In terms of legal work, we have continued our compilation of legal industry summary reports and created and presented a Comparative Analysis of Cambodian and US eminent domain doctrine. In true Socratic style, we presented our legal teams with hypos which were a new experience for our Khmer legal and foreign counsels, and old favorites for our two US attorneys. It was interesting to watch the Khmer legal counsels learn about and attempt to apply a common law perspective to various situations. Since Cambodia is not a common law country, it is not left to the courts to determine the meaning of a term and establish precedent. Our co-workers were actually quite shocked by the strength of US common law and the autonomy and power of the courts. Eventually, we were able to elicit some conversation about interpretation and the need to flush out vague terms such as “just compensation” which are found nearly verbatim in the Cambodian constitution and land law.

Well that is about all for now. I will be traveling to Vietnam this weekend, so I will likely write a short entry about that around Monday. I hope everyone is enjoying their summer and travels as much as I am.