Cambodia’s Anti-Vietnam Obsession

New Hearings Begin

Stuart White, Phnom Penh Post, 31 July 2014

Former Khmer Rouge head of state Khieu Samphan (center) talks to his lawyer in the courtroom at the ECCC in Phnom PenhFormer Khmer Rouge head of state Khieu Samphan (centre) talks to his lawyer in the courtroom at the ECCC in Phnom Penh yesterday.

Evidentiary hearings in the Khmer Rouge tribunal’s Case 002/02 could come hot on the heels of the August 7 verdict in Case 002/01, starting as early as “late September”, parties to the proceedings confirmed at the case’s initial hearing yesterday.

When prompted by trial chamber president Nil Nonn to “explore the possibility of commencing evidentiary hearings in late September”, national co-prosecutor Chea Leang said that her team had been waiting for the start of the case and would be available through 2015.

Nuon Chea defender Victor Koppe concurred, and new civil party lead co-lawyer Marie Guiraud said that her team could start in “September or October”. Khieu Samphan counsel Anta Guisse, however, reregistered her team’s position that the next case shouldn’t begin until lingering legal issues are resolved.

The potential time frame for opening Case 002/02 was just one of many glimpses of the upcoming trial offered by yesterday’s initial hearing.

Civil parties spent a portion of the morning session outlining potential reparations projects they intend to seek. “Bolstered by the lessons” of Case 002/01, in the words of Guiraud, the team laid out proposals for both physical and mental health initiatives, vocational training for the children of forced marriages and a plan to help Vietnamese civil parties regain Cambodian citizenship lost as a result of forced deportations under the Khmer Rouge.

Parties also obliquely referenced the imminent resignation of judge Silvia Cartwright, the first public acknowledgement of her long-rumoured departure. Court legal communications officer Lars Olsen confirmed yesterday that Cartwright had “resigned, effective the 1st of September”.

On the subject of the sequence of the trial, the prosecution and defence yesterday put forth essentially opposing plans. The prosecution argued that evidence of the roles of the accused in an alleged joint criminal enterprise (JCE) should be the first order of business, followed by segments pertaining to each charge.

Koppe, however, suggested ending the case on the subject of JCE, and beginning with evidence of international and internal armed conflicts in Democratic Kampuchea, hinting at the team’s plan to argue that the Khmer Rouge faced a legitimate security threat and was riven by rogue factions.

The nature of the conflict, he said, could “fundamentally affect the arguments parties may put forth” and was furthermore “at the very heart of our case”.

Yesterday’s session ended with prolonged wrangling over witness lists, most notably over three witnesses on the Nuon Chea defence team’s list who declined to appear when summonsed in Case 002/01 – senior government officials and former Khmer Rouge cadres Heng Samrin and Chea Sim, and former justice minister Ouk Bunchhoeun.

The refusal of government officials to answer summonses has long been a source of criticism for the court, but Leang, the national prosecutor, unilaterally objected to their inclusion in Case 002/02.

International co-prosecutor Nicholas Koumjian, meanwhile, noted that he hadn’t objected to any of the defence’s witnesses.


Second Phase of KRT Case Set

S-21 survivor Chum Mey (right) attends a civil party discussion yesterday in Phnom Penh

S-21 survivor Chum Mey (right) attends a civil party discussion yesterday in Phnom Penh.
Thu, 12 June 2014 – Stuart White – Phnom Penh Post

The Khmer Rouge tribunal yesterday set a date for the first hearing in upcoming Case 002/02, instructing parties to appear in court on July 30 to begin hammering out the particulars of how the second subtrial in the court’s flagship case will proceed.

According to a filing from the court’s trial chamber, the initial hearing will hew strictly to matters concerning the new subtrial’s sequence, civil parties’ proposals for new reparations projects and outstanding preliminary objections and other legal issues pertaining to the new case.

“The Chamber will not hear oral argument during the hearing in relation to any issue other than those indicated above,” the filing reads.

Coincidentally, the announcement that the initial hearing would deal with civil party reparations came on a day when civil party lawyers and others had gathered to discuss just that.

Reparations requests in recently ended Case 002/01 have been finalised and – in all but one instance – funded, but the process of securing the money was long and arduous, at times requiring the help of civil party lawyers themselves.

As lead national civil party co-lawyer Pich Ang put it yesterday: “The purpose of holding today’s session is to start [the reparations process] as soon as possible.

“From the experience we had in Case 002/01, we spent a lot of time to develop and prepare the projects, and after that, we had some time to do the fundraising, and the time was very limited,” he said.

The court’s current financial stability should make things easier this time around, he added.

Several of the proposals distributed at yesterday’s meeting had relevance to specific charges in Case 002/02, like sexual violence, and genocide against the Vietnamese and the Cham.

To those ends, one program would offer vocational training to the children of forced marriages; another would seek to help ethnic Vietnamese Cambodians whose families lost documentation of their citizenship under the Khmer Rouge. Yet another would provide access to free health care.

“I think that makes a lot of sense, because of the crimes we’re dealing with in this case – torture, enslavement – that created very real physical ailments,” civil party consultant Katrina Natale said.

Civil party and S-21 survivor Chum Mey, who attended yesterday’s forum, said he was “pleased” with the discussions, and said that tangible reparations had intangible benefits.

“It is psychological reparation,” he said.

Ethnic Vietnamese in Cambodia face discrimination

Photo: Denise Hruby/IRIN Liv Yang Bin is no stranger to discrimination


PHNOM PENH, 19 September 2013 (IRIN) – Denise Hruby – That he speaks, thinks and dreams in Khmer, the official language of Cambodia, is nothing unusual for Liv Yang Bin, an ethnic Vietnamese man whose great-grandparents settled generations earlier in the Trouy Sla commune, about 50km south of the capital, Phnom Penh.

“We are all Cambodians here. But the Khmer families, they own land or run shops. They live in the front of the village; we live here in the back,” said the 66 year old, whose community depends on fishing.

About 5 percent of Cambodia’s 15 million people are ethnic Vietnamese. Like Liv, most have lived here for generations and identify themselves as Cambodian, yet they do not hold citizenship and are barred from access to basic rights, according to activists.

“I get about 10,000 riel [about US$2.50] a day from fishing. It’s not a lot of money; being a farmer would be better, but without citizenship I’m not allowed to own land,” he said.

Liv’s fate, said Ou Virak, president of the Cambodian Centre for Human Rights, is shared by tens of thousands of ethnic Vietnamese living in Cambodia.

“We need to address this racism. People are not able to have their true identity on… [their official documents], so it limits their right to own land, their right to vote, and their ability to go to school,” Virak said. A difference must be made between recent Vietnamese immigrants and ethnic Vietnamese who have lived here for generations and should therefore hold the same rights as Khmer Cambodians.

When each of Liv’s five children was born in Cambodia, authorities told him that the babies would not receive Cambodian birth certificates because they were Vietnamese.

Without a birth certificate, they could only unofficially attend some classes in school, but were not allowed to take the state exam at the end of grade nine, required for continuing their education at secondary school.

“They wanted to go to high school, but weren’t allowed. So I had to teach them to be fishermen,” he said.

Anti-Vietnamese sentiment

The discrimination is rooted in the history of these neighbouring countries, said Sotheara Vong, a history professor at the Royal University of Phnom Penh. “Ever since the 1650s, Cambodia has lost territory to Vietnam,” he said, naming the Mekong Delta and Phu Quoc, an island off the coast, as examples. To this day, Cambodians still refer to these territories by their Khmer names.

Anti-Vietnamese sentiment reached its peak during the 1970s, when the Lon Nol regime, followed by the notorious Khmer Rouge militia, are estimated to have killed or expelled 300,000 ethnic Vietnamese, according to Cambodia: Report From a Stricken Land, a history of the country from 1970 by Pulitzer prize-winner Henry Kamm.

Whether the killings were genocide has not yet been heard by the Khmer Rouge tribunal, said Lens Olsen, a spokesperson for UN Assistance to the Khmer Rouge Trials.

“Basically, the charges are alleging that the Vietnamese minority was identified, targeted and systematically killed,” Olsen said. A date for the hearing has not been set. Today, old grudges over losing land to Vietnam have become new ones, said the Royal University’s Sotheara.

“Many people observe that there are more and more new Vietnamese immigrants arriving here, and the government gives the forest land concessions to Vietnamese businessmen. People are worried about the loss of sovereignty over their own land, something they have learned from Kampuchea Krom,” Sotheara said, referring to an area that includes the Mekong Delta.

Photo: Denise Hruby/IRIN Many ethnic Vietnamese work as fishermen


Not allowed to vote

During Cambodia’s still-disputed national election on 28 July, anti-Vietnamese sentiment became even more apparent when ethnic Vietnamese eligible to vote were prevented from doing so by ethnic Khmers.

“Yuon are not allowed to vote,” about 500 people shouted while blocking Liv’s polling station. Yuon is considered a racially charged term discriminatory to Vietnamese. “They pushed me, and they were so many; I was scared that they would beat me up,” Liv said. He was unable to cast his vote.

Government spokesperson Phay Siphan conceded there were human rights violations against the minority, and laws to protect them need to be improved. “We feel very sorry for those people; we respect them. But then we don’t get any support from the opposition, the human rights groups or other governments. No one says a word about the issue,” Phay said.

Phil Robertson, the deputy director of Human Rights Watch’s Asia division, agreed that the problem had never been addressed.

“The whole problem is continuously swept under the carpet by just about all stakeholders concerned, and this is a travesty for this community and for the larger cause of human rights in Cambodia,” Robertson said.

Liv has grown used to the discrimination and would never consider leaving Cambodia. “Our ancestors lived and died here,” he said. “I feel Cambodian. I don’t know why I’m not being treated like a Cambodian.”

Monitor slams court for reparation plans

Phnom Penh Post – Thu, 12 September 2013 Stuart White –

The Khmer Rouge tribunal has been “negligent” in its treatment of civil party reparations, the Open Society Justice Initiative argued in a paper released yesterday.

The court’s trial chamber has said that it “may only endorse reparation measures … where sufficient funding has been secured,” and that a final submission outlining proposed projects and their funding status must be submitted by September 26.

However, as both OSJI and civil party lawyers have made clear, such funding has been in very short supply, and the burden of fundraising has been left entirely to what OSJI characterises in its two-page position paper as an understaffed Victim Support Section and to the civil party lawyers themselves.

“The court’s funding mechanisms puts these costs outside of the core budget and thus place an unfair burden on the Co-Lead lawyers and the civil parties they represent,” OSJI’s paper reads. “The court is negligent in inadequately supporting the Co-Lead lawyers and the VSS with staff and high-level institutional leverage to secure funds and political support for reparations.”

Lead civil party co-lawyer Elisabeth Simonneau-Fort said in an email yesterday that the civil parties still remain far from meeting their needs and noted the situation’s “extraordinary and huge burden: the Civil Party has to find the funding for its reparations if it wants to have any”.

In its position paper, the OSJI highlighted the difficulties of such a situation – the first being that the civil party lawyers are already shouldered with the task of representing nearly 4,000 civil parties in court.

The second, it argues, is that reparations fall by the wayside at a time when the court’s national side is grappling with a staff walkout, and cannot fund even its essential functions.

UN Special Expert to the tribunal David Scheffer, who recently completed a fundraising tour of ASEAN capitals, said in an email yesterday that the subject of reparations had been raised in his meetings, but that the purpose of the tour “was primarily to lay the groundwork for future contributions to the national budget”.

“The reparations projects are extremely important to obtain support for nationally and internationally. However, the imminent deadline of September 26 creates a problem as foreign governments typically require more lead time to consider and then approve project assistance,” he said.

“If more time were afforded us to work this issue, that might prove very helpful.”

Late last month, civil party lawyers filed an update on the funding status of their eight proposed reparations projects – which include things like monuments and mental health programs for victims.

So far, the Documentation Center of Cambodia has accepted the responsibility for two projects: a permanent historical exhibition and a chapter to be included in the manual it publishes on the teaching of Khmer Rouge history.

The only other program that is fully paid for is a “National Remembrance Day”, which, the filing notes, “does not in itself require any funding”.

Despite the lingering questions over funding, however, it is still unclear whether September 26 is a hard and fast deadline.

Court legal communications officer Lars Olsen said yesterday that he was unable to comment on whether the trial chamber would allow for any opportunities to revisit the issue of reparations funding after the 26th, and even Simonneau-Fort said she was unsure what the deadline means.

“Frankly, I don’t know what will happen after the 26th [of] September,” she said.

For additional press coverage of this issue, please click here.

Please read below for the press release from the Open Society Foundations regarding the challenges facing reparations at the ECCC.


The Funding Challenge for Reparations in Cambodia | Open Society Foundations (OSF)

The Khmer Rouge tribunal in Cambodia was the first international court to
give victims a formal voice in a major atrocities trial. Victims of the
Khmer Rouge mass crimes committed in Cambodia from 1975-1979 are civil
parties to the trial process, participating with many of the same rights as
the prosecutors and the defense. They may also request the court to order
reparations. In Case 002.1, nearing completion on crimes against humanity
charges against the surviving senior leaders of the regime, 3,866 victims
have been admitted as civil parties.

The ECCC has adapted the Cambodian domestic civil party participation system
to address both the logistics of dealing with the large number of victims
involved, and the fact that the accused have each claimed to be indigent,
thus eliminating them as a source of funds for reparations.

At the ECCC, reparations are limited to “collective and moral reparations,”
to “acknowledge the harm suffered by civil parties as a result of the
commission of the crimes.and provide benefits to the civil parties which
address this harm.” The court rules say that these benefits shall not take
the form of monetary payments to civil parties themselves, and that
sufficient funding shall be secured from outside sources if the accused
cannot pay for reparations. Civil parties are represented collectively at
trial and for purposes of requesting reparations by a team of lawyers
designated as the Co-Lead Lawyers.

The Co-Lead Lawyers have already submitted a description of priority
reparation projects for initial approval by the chamber if there is a guilty
judgment in the case, proposing seven projects which address remembrance and
memorialization, rehabilitation, and documentation and education. The Trial
Chamber has indicated that it would be prepared to endorse these proposals.
But it has emphasized that it can only include reparations projects in a
judgment “where sufficient funding is secured.”

The court has requested verification of funding for the projects from the
Co-Lead Lawyers by September 26, 2013.

The Co-Lead Lawyers worked with the individual civil parties and their
lawyers, the Victim Support Section (VSS) of the court, and the NGO
community to develop proposals they believe are reasonable in terms of costs
and implementation. The reparations projects proposed include a remembrance
day, a public memorials Initiative, rehabilitation projects that include
testimonial therapy and self-help groups, and documentation and education
projects that include a mobile exhibition and education project, a permanent
exhibition, and a booklet on adjudication of fact in the case. Approximately
$2.5 million must be raised to launch the proposed projects and satisfy the
Trial Chamber’s requirement that sufficient funding has been secured.

Raising funds for reparations is extremely difficult for the Co-Lead lawyers
and the VSS for several reasons. First, they are tasked with representing or
supporting 3,866 victims in an ongoing trial and have inadequate staff and
expertise to do active fundraising. Second, it is difficult to interest
donor states and entities in these projects in advance of a judgment in the
case (which is a necessary precondition for a final reparation award from
the court) and under circumstances where the court is having difficulty
raising funds for core staff expenses. The court’s funding mechanisms puts
these costs outside of the core budget and thus place an unfair burden on
the Co-Lead lawyers and the civil parties they represent. The court is
negligent in inadequately supporting the Co-Lead lawyers and the VSS with
staff and high-level institutional leverage to secure funds and political
support for reparations.

The court’s latitude in awarding reparations is extremely narrow. No one
expects that the court can order reparations to make victims of the Khmer
Rouge whole. Yet, some significant reparations to symbolize that the court
is truly serving victims of the Khmer Rouge crimes is essential if the ECCC
civil party process is to have meaning. The court’s legacy as a leader in
victim participation is at risk. If funding is not secured immediately for
the extremely reasonable and modest proposals put forth by the Co-Lead
Lawyers, not only will the legitimate expectations of the civil parties be
dashed, but the ultimate reputation of the court will be diminished and the
opportunity to establish a meaningfully best practice for other atrocity
courts will be lost.

The donors to the ECCC justifiably laud the court for its leadership role in
supporting victims by way of its innovative civil party procedures. It is
time they now step up and fund the reparations projects that put real
meaning to that system. Such funding is a tiny portion of the overall costs
of the ECCC, yet its absence would disproportionately diminish the legacy of
the court. We understand that the courts very existence is threatened by a
failure of the Cambodian Government to provide or raise funds for its share
of the budget. While this priority must be dealt with immediately,
international donors should not overlook the essential role that funding
reparations requests will play in the ability of the court to meet the
expectations of Cambodian victims.

We urge the donors of the court and other interested parties to immediately
commit to funding the reasonable reparation requests put forth by the
lawyers representing the civil parties in Case 002.

Click here to see the original press release.

For the Trial Chamber memorandum referred to in the above article, please click here.