| COMPLAINT ALLEGING OBSTRUCTION OF JUSTICE AND IMPROPER AND UNLAWFUL INTERFERENCE WITH THE OPERATIONS AND INDEPENDENCE OF THE EXTRAORDINARY CHAMBERS (ECCC) ESTABLISHED TO ADMINISTER JUSTICE
TO THE PERPETRATORS OF THE KHMER ROUGE
GENOCIDE October 24, 2010
Ms.
Patricia O'Brien Dear Under-Secretary General O'Brien: A number of Cambodian victims of the Khmer Rouge atrocities, including the Association of Khmer Rouge Victims in Cambodia, the first civil party and victims' rights group officially recognized by the ECCC, along with other Cambodian groups representing victims rights, hereby bring this formal Complaint and informational submission to the attention of the United Nations in conjunction with the scheduled visit of Ban Ki-moon, the Secretary General of the U.N., to Cambodia that begins on October 26, 2010. We hope and trust that the substance of the allegations and information in this Complaint will be shared and discussed by the Secretary General and his United Nations delegation with Prime Minister Hun Sen and other relevant Cambodian and Extraordinary Chamber officials during the Secretary General's visit. This Complaint describes and documents an ongoing policy and practice of the current Government of Cambodia headed by Prime Minister Hun Sen to improperly and unlawfully interfere with, attempt to influence, and obstruct the operations of, the special tribunal established by the United Nations under an Agreement with Cambodia to investigate and secure justice for atrocities, including genocide, committed against the Cambodian people by the Khmer Rouge regime during the period of 1975 to 1979. These practices of the current government of Cambodia, by preventing the prompt and effective administration of justice by the ECCC for the international crimes committed by the Khmer Rouge, amount to the perpetuation and condoning of the war crimes and crimes against humanity committed as part of the Khmer Rouge genocide that resulted in the torture and execution of two million Cambodian civilians in what have been described as "the killing fields." I. Interference with the Independence of the
Court and Its Judges Is Prohibited. ● Article 3(3) of the Agreement Between the United Nations and Cambodia Concerning Prosecution of Crimes Committed During the Period of Democratic Kampuchea (the Khmer Rouge regime) specifies that judges of the Chamber "shall be independent in the performance of their functions and shall not accept or seek instructions from any Government or any other source." ● Article 10 of the Cambodian Law on the Establishment of the Extraordinary Chambers (NS/RKM/1004/006, as amended and revised, hereinafter cited as "Cambodian Law") contains a similar mandate that "Judges shall be independent in the performance of their functions, and shall not accept or seek any instructions from any government or any other source." ● Article 33 of the Cambodian Law requires that "The Extraordinary Chambers ... shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights." ● Article 40 of the Rome Statute establishing the International Criminal Court embodies the basic principle of judicial "independence in the performance of their functions" as a core value of international courts and courts established to deal with internationally sanctioned crimes against humanity. The same principle of independence is reflected in the "solemn undertaking" that every judge and other major court official must take "to exercise his or her respective functions impartially and conscientiously." (Rome Statute, Article 45) ● Article 70 of the Rome Statute includes as prohibited offenses against the independent administration of justice actions "impeding, intimidating or corruptly influencing" court officials, or "obstructing or interfering" with witnesses or evidence gathering efforts. ● The Rome Statute also provides a definition of improper interference with the court's process that includes "shielding the person concerned from criminal responsibility," (Article 17 (2)(a)) causing "an unjustified delay" in the proceedings, (Article 17 (2)(b), and failing to conduct the proceedings "independently or impartially." (Article 17 (2)(a) ● The Vienna Convention on the Law of Treaties obliges all national governments to "refrain from actions which would defeat the objective and purpose" of international treaties, such as the Geneva Conventions, the Conventions Against Genocide and Torture, and the International Covenant on Civil and Political Rights, that they have either ratified or signed in anticipation of ratification. The prohibitions against executions, torture and genocide that the ECCC is mandated to enforce in the context of the Khmer Rouge atrocities are embodied in all of these treaty obligations that Cambodia has ratified and agreed to observe. 2. The Right of Victims and Victims Groups to Submit Information to the Court. The abuses and violations of international law described in this Complaint are being brought to the attention of the United Nations by victims of the Khmer Rouge atrocities, and by Cambodian groups representing their interests, pursuant to provisions of the United Nations Agreement, the implementing Cambodian law, and specific standards recognizing the rights and status of victims and victims' groups before the ECCC that are incorporated in the Internal Rules of the Court. These sources, and especially the very detailed ECCC Internal Rules, recognize the right and ability of victims and their representatives to bring complaints, information and objections to the attention of the ECCC and the United Nations, and to play an active part in assuring that the operations of the ECCC are effective, properly take into account the interests of victims, and are in accordance with international standards and requirements. Specifically: ● Rule 23 of the ECCC Internal Rules authorizes "Civil Party actions" before the ECCC Tribunal for the purposes of participation "in criminal proceedings against those responsible" for Khmer Rouge genocide abuses, and obtaining "collective and moral reparations." It specifies that civil party participation may involve either individual and/or group involvement at the pre-trial and trial stages of criminal prosecutions, and indicates that civil parties can file claims for reparations and informational submissions to the Tribunal, and may be represented for this purpose by national and foreign attorneys. Rule 23 also recognizes the right of victims to form or join their own victims' associations to pursue their interests before the Tribunal. ● Rule 12 of the ECCC Internal Rules establishes a Victims Support Section and a Civil Party Lawyers Section to facilitate and assist the participation of victims and victims' groups in the Tribunal's processes. ● Rule 22 of the ECCC Internal Rules recognizes the rights of accused and victims to private lawyers of their own choosing, including both national and foreign counsel. ● Article 68 of the Rome Statute embodies a similar victim participation standard, authorizing the ICC to "permit" the "views and concerns" of victims to be "presented and considered" at all stages of the proceedings, and indicating that views and information "may be presented by the legal representatives of the victims." 3. Khmer Rouge Crimes Against Humanity Are Being Condoned and Perpetuated By the Actions of the Government of Cambodia That Interfere with the Independent Operation of the ECCC Tribunal. The ECCC was established embodying a commitment to observe and enforce universally recognized standards associated with securing justice and accountability for war crimes, crimes against humanity, and specifically for the acts of genocide carried out in Cambodia and against the Cambodian people by the Khmer Rouge regime when they were in power between April 17, 1975 and January 6, 1979. The United Nations Agreement with Cambodia establishing the ECCC reflects universally recognized international standards prohibiting and requiring the prosecution of war crimes and crimes against humanity on an absolute basis. For example, the Rome Statute providing the framework for the International Criminal Court and international prosecutions of war crimes more generally, defines war crimes, especially those "committed as part of a plan or policy or as part of a large-scale commission of such crimes," to include "grave breaches" of Geneva Convention standards, such as willful killing and torture, and other direct attacks against the civilian population. The ECCC implementing statute adopts similar definitions for the war crimes and crimes against humanity that the Tribunal has jurisdiction to prosecute. (See, esp., Article 4 defining acts of genocide, and Article 5 defining crimes against humanity.) These are exactly the type of abuses and acts of genocide and crimes against humanity that the Khmer Rouge committed. Although these violations took place over thirty years ago, they are being perpetuated and condoned as a result of the obstructionist actions by the current Cambodian government that interfere with the mandate of the United Nations to secure justice for the victims of the Khmer Rouge genocide, and that allow the perpetrators of those atrocities to continue to escape justice and to enjoy impunity for their internationally recognized crimes. This is not the first time that the Government of Cambodia has taken actions that perpetuated and condoned the type of systemic abuses of the civilian population that were central aspects of the Khmer Rouge campaign of genocide. Another example of how the Cambodian Government misused the legal and judicial process to carry out policies that violated core principles of human rights and humanitarian law can be seen in how what was referred to as "The K5 Plan" was developed and carried out by the new government of the People's Republic of Kampuchea after the Khmer Rouge regime was deposed, between 1982 and 1988. Many current government officials, including Prime Minister Hun Sen, were high level officials at that time, and played a major role in the implementation of the K5 Plan. The military purpose of the K5 plan was to "seal" the border with Thailand with land mines in order to prevent the infiltration of returning Khmer Rouge guerrillas. But the effectiveness of the strategy is very much open to question since the K5 Plan did not deter Khmer Rouge fighters who found ways to bypass the obstructions. Even more important, and more widely criticized, are the methods used by the government to carry out the K5 Plan though massive forced conscription of the civilian population and forced labor that resulted in the deaths of tens to hundreds of thousands of Cambodian workers. Many of them were killed or maimed by the mines they were laying, or executed when they tried to escape from the highly abusive conditions, or died as a result of the harsh conditions they were exposed to, including rampant malaria. These practices are reminiscent of the widely condemned force labor practices of the military regime in Burma, also justified on military and economic development grounds, that continue to this day, and that have become the target of universal international condemnation and sanctions. The refusal and inability of the current Cambodian Government to repudiate the K5 Plan, and to apply sanctions to those responsible for the crimes against humanity that were core elements of the Plan, amount to a condoning and perpetuation of these major human rights abuses and crimes, in much the same way that the Khmer Rouge atrocities continue to be condoned and facilitated by the current Government through their interference with the independent operations of the ECCC Tribunal. Among the types of ongoing, systemic interference by the Government of Cambodia that amount to obstruction of justice, and improper and unlawful intrusion with the operations and independence of the ECCC, in violation of the United Nations Agreement, Cambodian implementing laws, and international law governing war crimes tribunals as set out above, are the following: ● Delaying and Preventing Indictments and Prosecutions from being Brought. Only one case (the "Duch" case) was brought to trial and decided in the first seven years since the Tribunal was created, and in the first four years of its operation. Four new cases have just been opened in September, 2010. But the record of only one completed case in the seven years since the Tribunal was created suggests the type of delay in processing that amounts to the type of "shielding" of perpetrators from prosecution that is prohibited under international war crimes tribunal standards, such as Article 17 (2)(c) of the Rome Statute. The majority control of the ECCC Tribunal by Cambodian judges subject to the control and influence of the Government of Cambodia has been a major factor producing this unconscionable delay in securing justice for the victims of Khmer Rouge abuses by the ECCC. There also are concerns with whether the second set of indictments issued in September, 2010 against four of the higher level Khmer Rouge officials will produce the trials and punishments that they deserve, given the lengthy delays that have taken place in the processing of these cases to date. The poor record of indictments, trials and convictions by the ECCC compares very unfavorably with the results achieved by the other special tribunals established to deal with major war crimes and crimes against humanity taking place in other nations, including those that follow the joint domestic and international framework applied in Cambodia with the ECCC. The purely "international" tribunals established by United Nations Security Council Resolutions produced 161 indictments and 48 convictions in the case of the Tribunal for former Yugoslavia, and 50 trials and 29 convictions in the case of the Tribunal for Rwanda over a 15 year period. The "hybrid" tribunal for Sierra Leone that closely follows the Cambodia model in combining domestic and international elements as part of a court that operates within the national judicial structure has produced 13 indictments, 9 trials, and 8 convictions since its creation ten years ago. The failure of the ECCC to prosecute cases in a timely and effective way, and especially the role played by the Cambodian judges and prosecutors that make up the majority of the Court and control its decision-making, also were roundly criticized when the first decision of the Court in the Duch case was announced, and indications were given that a dispute existed "between the international and Cambodian co-prosecutors over whether to pursue more suspects," and bring more cases. ABC (Australian Broadcasting Corporation) News, posting 16 August 2010, www.abc.net.au/news. Amnesty International, one of the leading human rights organizations, also has criticized the ECCC and the Cambodian government, claiming that "political interference from Cambodian officials who openly oppose more prosecutions," reflected in the "disagreements between the Cambodian and International Co-Investigating Judges," threatened to undermine the effective operations of the Tribunal. Cambodia: Duch Sentence First Step for Justice for Country's Two Million Victims, Amnesty International web posting, 26 July 2010, www.amnesty.org.uk/news. The Open Society Justice Initiative Reports provide further extensive documentation and confirmation of pervasive nature of the Cambodian Government's efforts to control and delay the operations of the ECCC Tribunal, noting, for example, "the limited number of defendants at the ECCC in comparison with other international criminal justice mechanisms," ( Working Paper Number One, August, 2010, page 7) and the concerns that the cases against the higher level Khmer Rouge officials have not been processed as quickly and effectively as they deserve as a result of government induced delays. (OSJI report on Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, March 2010, Executive Summary, page 2). The OSJI cites as the "most significant problems currently facing the ECCC are related to political interference" by the government of Cambodia, and "a failure to adequately address corruption" including the forced kick-back payments by ECCC officials to government officials who appointed them. (Ibid.) "Cambodia's prime minister [Hun Sen] and other senior government officials have stated that these cases should not go forward for fear they will cause political unrest." (Ibid.) The OSJI reports provide extensive documentary support for the finding "that Cambodian ECCC officials [appointed by the government] are not cooperating with proceedings, the investigating judges delay pursuing Cases 003 and 004 [against the highest level Khmer Rouge defendants]" as a result of their "succumbing to political interference." (Ibid.) They also criticize the "political interference in the court's [decisions regarding] calling and interviewing witnesses ...." (Ibid.) The delay in initiating prosecutions takes on added significance when it is recognized that many of the principal perpetrators of the Khmer Rouge atrocities are reaching old age or dying off from natural causes at a very rapid rate. These delays in securing justice, and failures to prosecute, can perhaps be explained by the fact that many current high-level officials of the Government of Cambodia were closely associated with the Khmer Rouge regime, and may well have some hesitancy to invoke criminal sanctions against themselves or their close associates. ● Influencing the Application of Overly Lenient Sanctions. There are strong indications that the Government of Cambodia influenced the Tribunal's judges to reduce the sentence originally imposed in the Duch case to a level inconsistent with the severity of the massive crimes against humanity (including 15,000 executions) that he committed. Duch, whose full name is Kaing Guek Eav, was found by the ECCC, and himself acknowledged, to have directly supervised and ordered the unlawful detentions and executions of between 14,000 and 15,000 Cambodians when he served as head of one of the principal detention centers used by the Khmer Rouge in their genocide campaign, the infamous Tuol Sleng Security Prison known as S 21. According to Amnesty International, only 12 of the detainees held at S 21 prison survived, with the other 14,000 plus prisoners being "tortured to death or executed." Cambodia: Duch Sentence First Step for Justice for Country's Two Million Victims, Amnesty International web posting, 26 July 2010. Duch was described as being "at the center of the security apparatus" that supervised the genocide. But the Tribunal reduced his sentence from the originally mandated 35 years to 30 years, and then further reduced the amount of time he actually would have to remain in prison to 19 years, based on time served and claims that he suffered abuse while being detained. Many victims and relatives of victims were reported to be "dismayed" by the reductions in Duch's sentence, which "gives insufficient weight to the gravity of Duch's crimes and his role and his willing participation in those crimes." ABC (Australian Broadcasting Corporation) News, posted 16 August 2010, www.abc.net.au/news. The reduction of the sentence delivered in the Duch case takes on added significance when it is remembered, as noted in the above section on delays in prosecutions, that this is the only case that the ECCC has brought to trial and delivered a verdict upon in its seven year history. ● Interfering With Witnesses and the Gathering of Evidence. Although tampering with witnesses and the gathering of evidence by the ECCC and by the international war crimes tribunals have been specifically prohibited by the Agreements establishing the tribunals and by the tribunals' own rules, there is strong evidence that the Government of Cambodia has violated these prohibitions, as the OSIJ reports have noted. The Government has not permitted witnesses who are officials of the present government to testify before the Tribunal, perhaps in an effort to "cover-up" of the fact that present government officials were associated with the Khmer Rouge regime. Two of the international judges who are members of the ECC have specifically alleged "in an impassioned minority opinion" that "the government may have illegally acted to deny the tribunal necessary witness testimony and made fair trials less likely," suggesting that "outside interference" may be responsible for the fact that the Cambodian judges supported the government's position on calling witnesses. This outside interference included "warnings" by Prime Minister Hun Sen to high-level Cambodian officials "not to cooperate with the tribunal" when they were summoned to testify before the ECCC. "Gov't Contempt Ruling Divides KRT Judges," The Cambodia Daily, Sept. 13, 2010, page one. It was noted that "Cambodian judicial officers, from the prosecution to the Office of the Co-investigating Judges ... have uniformly ... hewed to the government position, feeding the widespread perception that the court's Cambodian side is unable or unwilling to perform acts displeasing to the government." Id. at page two. The government's Information Minister is quoted as saying that the international judges and the foreign staffers "can pack their clothes and return home" if they can not accept the government's policy that officials can not testify "even if they are called as witnesses." Ibid. In their minority opinion the international judges indicated that "the comment by [the Information Minister] satisfies us that there is a reason to believe he, or those he speaks on behalf of, may have knowingly and willfully attempted to threaten or intimidate" the officials called to testify. Ibid. The Open Society Justice Initiative also has condemned the government's decision to deny access to witnesses as a prime example of political interference in the ECCC's operations. (OSIJ Recent Developments Report, March 2010, Id. at p. 2) 4. Governmental Interference With the Judicial Process for Political Purposes Has Been An Ongoing and Systemic Problem in Cambodia. Government obstruction of the efforts of the ECCC is part of a widely acknowledged general tendency by the Cambodian Government, that has been extensively documented and criticized by the United Nations and the international human rights community, to interfere on a regular and systemic basis with the independence of the courts and the judiciary for political purposes. The United Nations' own Special Rapporteur for Human Rights in Cambodia and members of the U.N.'s Human Rights Council Working Group have noted government interference with the courts as a major, systemic problem that has affected the independence of Cambodian courts generally, as well as the effectiveness of the Khmer Rouge Tribunal, and has contributed to current human rights abuses. The Government of Cambodia's systemic policy and practice of interference with the judicial process is not a new phenomenon with respect to the ECCC. At one point early in the process of negotiating the UN Agreement with Cambodia that created the ECCC, United Nations' Secretary General Kofi Annan withdrew from the negotiations, questioning whether the Cambodian Government had a sufficient commitment to establish an impartial court with the independence to effectively pursue Khmer Rouge war criminals. He objected specifically to efforts by the Cambodian Government to refuse to accept the inclusion of standards in the Agreement that would assure the independence and effectiveness of the Tribunal, and its adherence to international standards, and to maintain control over the Tribunal's processes in the hands of Cambodian officials and judges. The United Nations' Chief Legal Advisor at that time, Hans Corell, also openly criticized the Cambodian Government for its refusal to accept standards that would assure independence and the effective, impartial functioning of the Tribunal. These early concerns of the United Nations and the international community about whether the Cambodian Government would permit the ECCC to operate on an independent and impartial basis unfortunately have now been confirmed by the recent policies and actions of the Cambodian Government that interfere with the Tribunal’s operations, and prevent it from carrying out its mission on an independent and effective basis. 5. Action Requested From the Secretary General and From the United Nations. We call upon the Secretary General during his visit to Cambodia that begins on October 26, 2010, and upon the United Nations more generally in association with their responsibility for establishing the ECCC and supervising its operations, and for securing justice for war crimes and crimes against humanity more generally, to make clear to Cambodian officials that their long-standing and continuing obstruction of the effective operations of the ECCC violates the United Nations Agreement setting up the Tribunal, as well as the Cambodian implementing laws, and international legal standards on which they were based, and that these obstruction of justice actions, which amount to a continuation and support for the Khmer Rouge genocide, will not be tolerated by the international community. We further call upon the Secretary General and the United Nations to take actions to assure the independent and effective operation of the ECCC Tribunal, and its ability to carry out its function of securing justice for the victims of genocide and crimes against humanity during the Khmer Rouge regime, so that additional cases can be tried before the Tribunal, and effective penalties assessed against those responsible for the Khmer Rouge atrocities, and so that victims of these genocidal abuses will be given a meaningful opportunity to have the truth told and the perpetrators held to account. Respectfully submitted this 24th day of October, 2010 on behalf of the victims of the Khmer Rouge atrocities by: Theary C. SENG, President, Association of Khmer Rouge Victims in Cambodia, the first civil party and victims' group recognized by the ECCC, Email address: theary.seng@gmail.com Sarini ROS, civil party, Email address: sariny.ros@free.fr Névinka KIMARI-LIM, civil party, Email address: nevinka.kimari@gmail.com Visaka KIMARI, civil party, Email address: visalux@gmail.com Antonya TIOULONG, civil party, Email address: atioulong@lexpress.fr Néva ROHMER, civil party, Email address: fnrohmer@yahoo.fr
Copy submitted to the Extraordinary Chambers in the Courts of Cambodia
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