Wheels!

This weekend I finally bought myself a motorbike! Here it is, my pride and joy---a Daelim Citi 100, a green hornet of uncertain vintage, with four gears, an unreliable electric starter, and an instrument panel that long ago stopped indicating speed, gear, or fuel quantity, purchased for the grand sum of $340 from the only obese Cambodian woman I have ever seen:

And here, for those who haven't experienced the joys of Phnom Penh's traffic, is a video I shot the other day by taping my camera to my handlebars, much to the amusement of other drivers. It starts in the parking lot of Legal Aid of Cambodia, and shows snippets of the very roundabout way I inadvertently took home. The shaking at the beginning is me jumping on the kick starter, thanks to the temperamental battery. My favorite part is at around 2:05, when you can see two dudes wheeling a rusty bicycle alongside their moto at high speed:

As you can see, the traffic in Phnom Penh is chaotic, to say the least. Of course I wear a helmet, but I consider myself an unusually safe driver here because I never drive into oncoming traffic. I also never transport more than one other person, though it's totally routine to see two adults and several small children on one moto. I also never administer intravenous medication on the moto:

Another road hazard here is the police, who routinely stop Westerners and demand on-the-spot "fines" for no good reason at all. So far I've managed to avoid being pulled over by veering into the middle lane whenever I see cops ahead, so that they can't easily flag me down.

For all the chaos, motoring around Phnom Penh is super fun. People seem to get a kick out of seeing a Westerner on an old beater like mine, instead of a more modern Honda, so I get lots of smiles and waves, especially from hack drivers (called motodop in Khmer) with the same kind of bike. 

Trespassing on your own land

Last week I went with the lawyers in the Land Law Program at Legal Aid to Siem Reap to visit two clients, husband and wife, who are in prison, accused of trespassing on their own land.

Their story is pretty typical: they're both former Khmer Rouge soldiers who settled on their farm after the fighting with the government stopped in the '90s. There was a government program, whereby you could take ownership of land by clearing it and removing any land mines in it---a sort of Homestead Act for Cambodia. The villagers did all that, established their farms, and started putting their lives back together.

Unbeknownst to our clients, however, the village chief illegally sold everybody's land to some politician quite early on, maybe ten years ago now. The politician in question (who is now a National Assembly member) bought the land as an investment---his intention was to sell the land for profit, not to farm it, so he left the villagers alone. Over the years the paper value of the land has skyrocketed, and it changed hands several times. Meanwhile, the villagers have continued farming the land, subsisting on their harvests as they've done since the war ended, totally unaware that influential people in the capital were speculating on its value.

That, to me, is one of the most revealing parts of the case. The villagers can continue farming the land, and the speculators can continue trading the land, coexisting in parallel universes, more or less blissfully ignorant of each other. It just so happens that the villagers are the legal owners of the land, but as long as their use of land---i.e., farming---doesn't conflict with the speculators' use of the land---i.e., profit---an equilibrium is maintained.

Our clients, however, decided to assert their legal claim to the land by seeking formal title to it. (Since the Khmer Rouge destroyed all records having to do with land ownership, it's very common for people to have a legal claim to their land without title, an actual piece of paper, recording that fact.) As soon as our clients sought formal ownership of the land, their interest collided with that of the speculators. The actual legal collision here is quite straightforward. The speculators think they own the land, but they don't, because they were defrauded in the first place; they have, in all fairness, been taken for a ride. They have a mess of their own to sort out, sorting out who owes what to whom over this rotten deal. But the villagers own the land---simple as that.

In Cambodia's courts, however, nothing is simple. The villagers may have the law on their side, but the speculators have money and influence. It's the easiest thing in the world for them to exert a little pull---and it really takes just a little---and steamroll the villagers. That's how our clients wound up in jail. The speculators bribed someone, or made a call, or both, and now our clients are looking at a year in prison for trespassing on their own land.

The really crazy part is that there's a whole system of special commissions, called Cadastral Commissions (from the French cadastre, for 'register of property'), charged with sorting out precisely this kind of all-too-common dispute. The only way to get definitive title to land is through that system. The speculators never went through that system, meaning that they have no legal support for their claim that they own the land. In essence, the speculators have succeeded in having two people locked up for trespassing on land that nobody legally owns.

What's worse is that our clients have four children, who are now stranded on their farm with nobody to take care of them. Chheng Ourn, the director of LAC's Land Law Program, filed a motion with the court to dismiss the trespassing charges, so hopefully their parents will be out of prison soon, but there's really no saying. My task now is to try and find some NGO to take in the children, but even that might not happen---they're all overbooked and underfunded, so finding one to take in four more kids will take some doing. Right now, the village is inaccessible by road thanks to flooding from Typhoon Ketsana, so the kids are making do with the food that Legal Aid dropped off last week.

There was a World Bank project to help improve matters. They were resolving land conflicts and issuing titles to avoid precisely this kind of situation. But the day after we got back from Siem Reap, we learned that Cambodia's government has ended the program, which according to a local rights group, was "an abysmal failure."

Back in Cambodia

So here I am, back in Cambodia. This time I'm working for a slightly more rag-tag organization, without the resources to handle my visas, so I had to shift for myself. As a result, I recently paid my very first bribe.

Let me hasten to say that this was a process utterly devoid of finesse. Do not for a second imagine me casting keen glances at stony faced interlocutors, engaging in any kind of savvy negotiations, or taking any audacious risks. Instead of conjuring "Sash in post-World War II Berlin traversing the treacherous zone borders using his wit and guile," think of "Sash learning an unfamiliar filing procedure at the DMV."

Here's how it went down. After disembarking from my plane, I shuffled through all the usual lines. I handed  over my passport and paperwork, and made my way to the cashier as directed. But instead of shuffling along to await my visa, I paused at the counter for an awkward moment, trying to figure out to whom I ought to address my grease payment. You could hardly imagine a less debonair figure dabbling in the less-than-pristine waters of Cambodian officialdom. I even briefly entertained the notion of clearing my throat, as in: "Ahem. Can someone please tell me whom I should bribe?"

But, as I say, this game does not require a light touch. The paper shufflers behind the window, keen-nosed for lucre, spotted me straight away; the same people who had processed and returned my documents without deigning to notice me or return my greetings one minute suddenly showed uncharacteristic solicitude. Anyway, I imagined that I detected a certain heightened energy in the ranks, a straightening of backs and turning of heads, as I cast about for a sticky palm.

I eventually addressed the whole passel of officials, asking nonchalantly "Is it possible to get a six-month visa here?" Sure now what I was after, the immigration officials jockeyed openly for my business, talking over each other and trying to catch my eye.

Eventually, one of them won out. The bureaucrat started answering, "Yes, it is possible. You can---"---but before he could finish, a man in an olive-green military uniform emerged from an office behind the counter and stood behind my bureaucrat, who immediately said "You can talk to him." The uniformed man was the captain in charge of the immigration office at the airport. His inferiors all deferred to him as he led me to a different desk.

From there it was entirely straightforward: the captain very politely named his price, which was exactly the same price I had been offered on my first trip to Cambodia, and promised to deliver my passport and visa on such and such a day. I turned over my passport, and received it back in due course, exactly as promised, personally hand delivered by the captain.

As you can see, this particular area of Cambodian corruption is no cloak-and-dagger affair. No surreptitious swaps, no deft conman shuffles. No cynical, cigar-chomping camaraderie. No winking, no shit-eating grins, no talk of backs being scratched. No party lines, no inside connections, no circumlocutions. Nothing that resembled any of the bribes I've seen in the movies, or on shows like The Wire. Just a quick, public transaction with a uniformed officer who identified himself by name using an official document, charged me what appears to be a standard fee, and delivered the goods in a timely fashion.

In other words, this particular bribe was essentially indistinguishable from a legitimate fee. I asked at the immigration office how to get a visa, and an immigration officer handled it for me. In fact, I would point out that when I asked how to get a business visa, nobody mentioned what I happen to know is the actual procedure. Anyone who hadn't done the research wouldn't even realize he had paid a bribe, if he could overlook the suspiciously personalized service. It was predictable, efficient, and relatively transparent, just like a good bureaucratic procedure ought to be. It's just that the procedure that exists on paper and the procedure that happens in practice are totally different from each other---especially with regard to who keeps the fee.

Of course, maybe this is just a rationalization. Maybe I sullied myself with bad karma by participating in such a sordid business. If omens are any indication, I must have displeased some deity, because the airport lost both of my suitcases.

Back in the USA . . . for now

As most of you know already, I am back in the US for about a month. I'm not yet reachable by phone, but I'll remedy that in the morning. Hardly worthwhile news to post at four in the morning, but I am currently suffering from serious jet lag as a consequence of a momentary, unaccustomed lapse into luxury and dissipation.

Ordinarily, I suffer only mild jet lag, especially when I arrive home late at night. On a long flight like the one from Hong Kong to New York, I usually get about two hours of sleep, by forcing myself unconscious through sheer force of will. Leg cramps, general irritation, and in-flight movies generally keep me awake the rest of the time, so that by the time I arrive home I'm capable of little more than a perfunctory greeting to the loving family before I collapse into bed.

But for some reason, I was bumped up into Business Class on my flight home this time. Not for me the grim, silent struggle for knee- and elbow-space, the incessant mewling and puking of babies, or the aching, unfulfillable urge to cross my legs. This time, sated with cognac and fine cheeses, lulled by the sound of glasses and porcelain chinking on amply laden carts, I slept the deep and refreshing sleep of one savoring unearned opulence.

The more fool me. I arrived in New York uncharacteristically perky, just in time for my sister and her fiance (who are putting me up for the night) to go to bed. That is why you find me posting to this nearly derelict blog at four in the morning. Serves me right, I suppose, for straying from the straight and narrow path of Economy Class.

Anyway, here are some pictures I took of the ruined temples at Angkor Wat.

Photo project

I haven't posted for a while because with the end of the summer looming, I actually have to hand in a memo on my research topic. That's about all I've been up to, so I thought I'd write about a great project my friend Beth Rossi is working on for Legal Aid of Cambodia that has started to bear fruit.

Earlier this summer, Beth identified twenty-two Cambodian kids from Battambang who either have already had or are at risk of getting into trouble with the law. After a couple of introductory sessions, she gave them disposable cameras with which to take photos of their daily lives. Once the results came in, she held a writing workshop where the kids wrote captions for the photos and biographies of themselves, which were exhibited along with the photos in Battambang.

I've posted some of my favorites below. One hundred of the best photos are available here. Pictures of the exhibit going up and of the writing workshop are here.

The next step is to have the captions and biographies translated from Khmer into English. Then Beth can hang prints of the kids' photos at restaurants and retailers around Boston (where she attends law school), with the ultimate goal of helping out Legal Aid of Cambodia. If the project is successful enough, it may well be repeated---and as Beth has pointed out to me, it's a very promising way to build connections between at-risk children and sympathetic lawyers.

Donations are, of course, welcome. You can also buy prints of any photos that catch your eye, with the money going to an excellent cause. Beth's email address is elizabeth.a.rossi [at] gmail.com.

Here's Beth mounting the exhibit with a colleague:

And here are all the kids who took the photos:

Phnom Penh

Two posts today: this one, which is hopefully pretty interesting; and another one probably only of interest to legal eagles. The second one is below, or you can access it here.

For the last few weeks, I've been working with some high school students who volunteer at DC-Cam, on top of my legal research. I'm supposed to be helping them with their writing; between communication difficulties and my lack of experience, I'm learning far more than they are.

My most precocious student is Romas, a Cham Cambodian girl who has essentially appointed herself student representative. Not only is her English better than the other students, but she is plain-spoken and confident where my other students are shy and deferential. It's a pleasure to work with all of them, but Romas's force of personality really sets her apart, especially among such a young group. She often translates for me, and negotiates on behalf of her peers over deadlines, meeting times, and so on.

Romas, along with a couple of other young volunteers, is learning radio production at DC-Cam. Last week, she brought me into the studio to play me a song about Phnom Penh. I got my hands on an mp3 version. Listen below, or here if the embedded player doesn't work.

A bit of background: the first thing the Khmer Rouge did when they took over was to force every last person to leave Phnom Penh. They claimed it was an "evacuation," and that the United States was planning to bomb the city (not altogether implausible, unfortunately), but it was really just another step in their plan to wind back the clocks into an agrarian golden age. The song Romas played me is about the period of exile from Phnom Penh:

Oh! Phnom Penh, during the three years we were apart, I missed you and my heart suffered each and every day, because the enemy cut off the affection between you and me.

When I was forced to leave you, anger burnt in my heart and compelled me to avenge [the sufferings you bore] to show my faithfulness to you.

R. Phnom Penh, our beloved city, in spite of the three years of hardship, you managed to preserve our [nation]'s bright history of courage and represent the soul of Kampuchea, which was once one of the world's glorious empire.

You prevented the disappearance of Cambodia, the descendant of the majestic Angkor empire.

Oh, the soul of the Khmer nation lives on and, oh, is inspired by the majestic Angkor empire.

Oh, Phnom Penh, now we are reunited and you are relieved from bereavement.

Oh, Phnom Penh, our nation's heart and soul.

Cathartic alchemy

Here's a little thing I wrote for DC-Cam about my trip to the court yesterday:

Yesterday, Comrade Duch’s defense team brought the trial to a grinding halt, forcing the Trial Chamber to adjourn for the day before hearing any substantive testimony from former S-21 interrogator (and alleged torturer) Mam Nai. No sooner had Mam taken the stand than defense lawyer François Roux raised a question that brought the Chamber up short: had Mam had the opportunity to consult an attorney about the possibility that he himself will be subject to prosecution, either before the ECCC or another Cambodian court, if the Trial Chamber accepts the Co-Prosecutors’ motion to use the doctrine of Joint Criminal Enterprise?

Although Deputy Prosecutor William Smith responded that his office had promised not to prosecute Mam before the ECCC, he was, of course, in no position to speak for Cambodia’s domestic prosecutors. Mam informed the Court that he although he would like to consult an attorney, he cannot afford to pay one. Unable to get hold of an attorney for Mam on such short notice, Trial Chamber President Nil Nonn had little choice but to adjourn for the day or expose the court to allegations of disregarding Mam’s rights.

Derailing Mam’s testimony was just another volley in the ongoing fight over Joint Criminal Enterprise. Simply put, Joint Criminal Enterprise is a legal doctrine that spreads guilt from one person to another, as long as a few requirements are satisfied. Under the doctrine, people who are participating in a common enterprise are considered guilty of each other’s crimes committed to advance the goal of the enterprise. For example, two people who agree to rob a bank together can both be convicted of murder if one of them shoots a teller during the robbery. Legally, under Joint Criminal Enterprise, it is as though both robbers committed the murder, even though only one of them pulled the trigger---even if the other had no intention of creating any casualties. Needless to say, Joint Criminal Enterprise is a prosecutor’s dream. If convictions and years in prison are the coin of the realm, Joint Criminal Enterprise gives a prosecutor vastly more bang for her buck, one crime garnering as many convictions as there are plausible participants.

The ECCC Co-Prosecutors have asked the Trial Chamber to use Joint Criminal Enterprise in judging Comrade Duch. The benefit to the prosecution is easy to see. The doctrine would not only make it easier to convict Duch, but would put the Co-Prosecutors in a strong position to convict the tribunal’s other defendants, who were, after all, members of a tight-knit think tank. Moreover, if the Co-Prosecutors could establish that S-21 was a Joint Criminal Enterprise in which Duch and all of the prison’s guards and interrogators participated, they could bury Duch in an avalanche of guilt. The symbolism is, presumably, not lost on them: a broad application of Joint Criminal Enterprise would effectively allow the Co-Prosecutors to spin Tuol Sleng’s historical record into a monumental conviction, a beguiling, cathartic alchemy.

But to the defense team, all that glitters is not gold. Their task will become vastly more burdensome if the Trial Chamber decides that it can hold Duch guilty of crimes that, in the view of the defense, he did not commit, was not aware of, and could not control. To them, and to academic critics of the doctrine, Joint Criminal Enterprise amounts to little more than guilt by association---good enough for moralists, perhaps, but not good law. Further, the doctrine is said by some to favor quantity over quality of convictions.

Duch’s lawyers are evidently resisting the use of the doctrine tooth and nail. Roux ‘s question---whether Mam had been able to consult with a lawyer about his exposure under Joint Criminal Enterprise---evinced more than his concern for Mam’s welfare. It highlighted an unresolved tension between Joint Criminal Enterprise and the right of a witness to refuse to incriminate himself. If simply working at S-21 exposes Mam to liability for the crimes of his fellow guards, who are free to incriminate themselves, he cannot safely testify about anything of value. Put another way, Joint Criminal Enterprise could put one witness’s right against self-incrimination into the hands of another witness, reducing witness protection to a nullity.

An important question that went unasked yesterday was whether the Joint Criminal Enterprise doctrine even exists in Cambodian domestic law. If the answer is no, then Mam quite simply cannot be prosecuted in the Cambodian courts (assuming, of course, that he avoids incriminating himself directly). Even if the ECCC Trial Chamber does accept Joint Criminal Enterprise, its decision has no effect on Cambodian law. As long as the Co-Prosecutors honor their promise not to bring Mam before the ECCC, he should be safe, Joint Criminal Enterprise or no Joint Criminal Enterprise.

But that, of course, was not the point. Roux put the Trial Chamber and the Co-Prosecutors on notice that his team will do its best to raise the cost of implementing Joint Criminal Enterprise, in terms of amnesties, legal aid, further delays, and the risk of appeal. He also put Mam on notice---whether with or without genuine grounds---that his testimony could come back to bite him.