Tuesday, June 16, 2009

The Court, finally

I finally went to the Court yesterday, for the first time since I've been here.

A bit of background: right now the Court is trying Kaing Guek Eav, better known as Comrade Duch. He was in charge of an interrogation center in Phnom Penh called S-21, or Tuol Sleng Prison, where some 15,000 people whose loyalty to the Khmer Rouge was in doubt were tortured and killed. I'll skip the grisly details on my blog, but there's plenty of information on the New York Times website and in Wikipedia. Duch has admitted responsibility for the crimes that took place at S-21, but since the Court rules have no mechanism for dealing with a guilty plea, the trial is going on regardless.

Although Duch's testimony yesterday was largely fairly technical and uninteresting, there were a couple of memorable moments in the day. At one point, Judge Lavergne was interrogating Duch about conditions at S-21. Duch was evidently impatient with the technical nature of the questioning; he eventually pointed out that the prison existed only as a way-station on the way to the killing fields, and said, memorably, that the prisoners "lived like animals and ate like animals. We thought of them as already dead, only waiting to be smashed."

At another point, the Co-Prosecutor showed a clip of video from the case file, which included footage of Vietnamese detainees at S-21. One of the victims, a woman sitting in the front row of the spectators' gallery, suddenly started sobbing. I often become very focused on the wonky procedural details of my research project, even in the middle of trial, but a lot of people are overwhelmed by seeing Duch and seeing relics of what happened to them.

We met some of the Court's VIPs yesterday as well: Chea Leang, the Cambodian Co-Prosecutor; and Dame Silvia Cartwright, one of the Trial Chamber judges, who has been a justice on New Zealand's highest court and New Zealand's Governor-General (seen here Eskimo-kissing the Queen). We were able to ask them questions about our research projects, which was enlightening, to say the least.

More wonkery about the trial

As I've noted before, the trial is creeping forward at a snail's pace, to the consternation of almost everybody involved. The delay---and the frustration---is partly attributable to the fact that different chambers in the Court have been repeating each other's work.

I was thinking about it in terms of Law & Order the other day. For those who don't watch the show, it always begins with a portentous voice saying the same thing: "In the criminal justice system, the people are represented by two separate, but equally important groups: the police who investigate crime, and the district attorneys who prosecute the offenders." Every episode starts with a police investigation, and ends with a courtroom prosecution, which is pretty representative of what actually happens in a common law system: police do all the investigating; attorneys do all the lawyering; judges umpire at both stages.

In the ECCC, the judges are the ones responsible for investigating crime. They do use a Judicial Police Force, but the judges still run the show. They also run the show at trial: instead of acting as as umpire, as they would in the States, the judges ask most of the questions.

What's worse, the judges at every stage can re-open the investigation. Even the Supreme Court Chamber judges, who in most systems would stick to deciding fairly narrow questions on appeal, can conduct new investigations, question new witnesses, or call back witnesses already questioned in the Trial Chamber. Of course, nobody knows how---or if---they'll use that power, since no appeals have been lodged yet.

Then there are the Co-Prosecutors, and the defense team. Individuals who want in for their own claims are allowed to participate as Civil Parties, and are represented in groups by lawyers who are allowed to question witnesses during the trial. So if Law & Order did an ECCC spin-off, the portentous voice would have to say "In the Extraordinary Chambers in the Courts of Cambodia, the people are represented by lots of important groups: the judges who investigate crime; the judges who prosecute the offenders; the prosecutors who prosecute the offenders; more judges who prosecute the offenders; some more judges who might investigate crime if they want to; ninety-eight civil parties, who are sometimes allowed to prosecute the offenders; and maybe more judges maybe investigating more crime. Maybe."

So in Duch's case, the Co-Investigating Judges have already investigated his alleged crimes, interrogated him, and interrogated witnesses. They've amassed an enormous case file, containing thousands of documents, transcripts, and so on. But now the Trial Chamber, instead of simply issuing a ruling based on the information in the case file, is once again questioning witnesses, and Duch himself, at great length.

The trial phase has already gone on far longer than anyone anticipated. Some people thought the trial would last about a month: they expected the Trial Chamber to spend most of its time looking at the case file, examining a few witnesses just to clarify points of confusion.

In fact, the trial is likely to take as long as a year. The Court was only supposed to exist for three years. That time will run out in July, and the Court won't even be anywhere near done trying the first of five defendants. If the Court's funding dries up before its work is done, it could turn into a real fiasco.

Of course, it's still early days: this is, after all, the Court's very first trial. And it's important to remember that the system is very new. The Cambodian judges, including Nil Nonn, the President of the Trial Chamber, are relatively inexperienced. Before this, the longest trial that Judge Nonn oversaw lasted four days.

Judge Cartwright also gave a convincing rationale for erring on the side of length. All of the Court's investigations are completely confidential, so what's heard in open Court is all that the public gets to know for the time being. Given the importance of these trials for Cambodians, it makes sense to prioritize building a public record. Anyway, it's far too early to tell how things will go here.

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