Wednesday, November 30, 2005

Dame Silvia Shortlisted to Judge the Khmer Rouge

By ANNA SAUNDERS and NZPA
30 November 2005

Governor-General Dame Silvia Cartwright has been shortlisted for a role in the trial of Khmer Rouge war criminals.

Dame Silvia, who has 20 years' experience as a district and High Court judge, has been selected as a potential judge on the Cambodian war crimes tribunal – a role she admits would be "harrowing".

If appointed, she will still finish her term as governor-general, which ends in August 2006.

District court judges Robert Spear and Fred McElrea are also among the 12 people shortlisted for the roles.

The Khmer Rouge controlled Cambodia from 1975 till 1979. During that time, about 1.7 million people were executed or died from starvation in what became known as the Killing Fields. However, Khmer Rouge leaders were never brought to justice. Though the main leader Pol Pot died in 1998, other leaders are living comfortably in Cambodia's jungles.

Two international judges and three Cambodian judges will sit on the trial chamber. Dame Silvia is shortlisted for the two international judge positions on the trial chamber, and three international judge positions on the Supreme Court.

Sitting on the tribunal will fulfil a goal that has been pressing on her conscience since turning down a chance to try Rwandan war criminals in 1995.

"I felt then that it was something I should be doing, but I couldn't for a whole lot of reasons. It has lurked in the back of my mind ever since."

She said the role would be harrowing. "You've got to be physically and mentally strong to cope with even the things that a New Zealand judge does.

"You cannot let it get to you, otherwise you are failing the people who bring their stories before you.

"You have got to keep the trial going on an even keel, with everyone getting treated the same way.


Dame Silvia tipped for Cambodia War Crimes Tribunal

Government House today confirmed that the Governor-General Dame Silvia Cartwright has been shortlisted as a candidate for the Cambodia War Crimes Tribunal.

She is one of a number of international candidates for a variety of positions attached to the Tribunal which is being assembled by the United Nations in conjunction with the Government of Cambodia.

Dame Silvia says that no matter what the outcome of the Cambodia War Crimes Tribunal appointment process, she will see out her term as Governor-General which expires in August 2006.

The Importance of Witness Preparation and Judicial Awareness for the Khmer Rouge Tribunal

Megan Whittaker

The Victims of Torture Project (VOT) provides a crucial service to many people who have been traumatized as a result of the Khmer Rouge period. In addition to identifying and treating those survivors with Post Traumatic Stress Disorder and its often devastating symptoms, the project “seeks to learn survivors’ views on memory and justice, and to promote community reconciliation in Cambodia.” One of the strengths of the project is its sensitivity to survivors’ capacity for re-traumatization during interviews. Throughout the interview process, the VOT staff makes great efforts to reduce the chances for re-traumatization, such as visiting the interviewees in their own homes and seeking to establish a rapport with the interviewees that breeds a sense of trust and genuine concern. The VOT staff does not question or scrutinize the interviewees’ stories, but instead receives them as a valid representation of the survivors’ experiences.

For those survivors who will testify as witnesses in the upcoming Khmer Rouge tribunal, however, the environment surrounding their participation will not be nearly as friendly. First, witnesses will most likely testify in an official courtroom setting, often with the defendant present, which can be an especially intimidating environment. Although the government has stated that witnesses will have special protection, current international due process standards discourage complete anonymity, creating a possible safety concern on the part of the witness that may be either actual or perceived.

Furthermore, witnesses will be cross-examined by lawyers whose job is to discredit testimony by any means possible. Lawyers will focus on every gap and apparent inconsistency in the witness’s story, and judges will analyze each gesture and behavior. Instead of inviting empathy, the witness’s trauma will be used against them to discredit the reliability of their testimony, and can leave them feeling frustrated and victimized yet again. DC-Cam’s Legal Training Manual cites an article by Samantha Power describing how witnesses in the ICTR were so badly treated, especially regarding the subject of sexual violence, that many referred to themselves as “tribunal survivors.”

As a result, witnesses in the upcoming tribunal need to be extremely well prepared before taking the stand. A victim’s sense of control over their own experience is important in avoiding re-traumatization. The more prepared a witness is with regard to 1) the upcoming legal process and 2) the recollection and narrative of his or her victimization experience, the more effective the testimony will be and the less re-traumatization will occur.

First of all, the attorney should do everything he/she can to familiarize the witness with the proceedings before actual testimony is given. This includes discussing the chronology of what will happen, the purpose of testimony, and the role of the judge and opposing counsel. To become more comfortable with the physical surroundings, the witness should, if possible, visit the courtroom, sit in the witness chair and be shown where others will sit and who will be present.

Witnesses should be given a thorough explanation of the risks and processes that are involved with testifying, especially the potential for offensive or hostile questioning during cross-examination. For example, opposing lawyers are allowed to “lead” witnesses – ask questions that suggest an answer – in hopes that the witness will comply rather than be confrontational. The entire atmosphere is intimidating to witnesses, and so they tend to agree with opposing counsel’s statements (masked as a question) rather than cause conflict. This can be devastating to the accuracy of their story since it comes out slanted in the language of the opposing attorney. The sense that their story and experience “isn’t coming out right” is extremely demoralizing and traumatic to witnesses, and contributes to a continued feeling of victimization.

Moreover, attorneys tend to interrupt and cut off witnesses in mid-sentence when they don’t like the direction in which the testimony is headed. Witnesses need to be told that once a question is asked, they have the right to answer it completely without interruption and should not let their natural politeness or attorney attempts at intimidation keep them from telling their entire story. They should be prepared to persist in finishing their answers despite opposing counsel’s attempt to silence them. One thing to note is that those witnesses who had been tortured under interrogation by the Khmer Rouge may also need significant psychological intervention in order to reduce the chances of re-traumatization set off by an aggressive opposing counsel. Preparation by legal and psychological counsel to help the witness withstand this kind of questioning is essential for both the accuracy of the testimony and the well-being of the witness.

Secondly, counsel for the witness should ensure that the witnesses’ accounts, given over 25 years since the end of the genocide, are coherent enough to hold up under intense scrutiny. For example, a victim’s ability to remember events may not manifest itself in the strictly linear form favored by traditional legal proceedings. Within the larger context, specific dates are not nearly as important to the witness as the overall experience. Again, a significant amount of therapy/ preparation may be needed in some cases to turn a larger experience into a narrative suitable for judicial proceedings, i.e., testimony that is consistent, non-speculative, and emotionally powerful.

“The narratives of persons traumatized as adults are fragmented and incomplete. The narratives often show lapses in monitoring of reasoning, such as lack of logic or lack of reality testing when discussing the trauma. Lapses in the monitoring of discourse are characteristic as well, such as prolonged silences, a focus on details or unfinished sentences….Turning trauma into a coherent narrative means challenging the narrative defenses, such as psychic numbing, dissociation of feelings from the story, selective forgetting or fragmentation. Initially, this might be in direct conflict with the tendency to avoid the trauma memory. The therapist then needs to ‘stand for the part of the victim’s self that could not bear to look at what is done to her’. Eventually, the traumatized person might be able to integrate the dissociated parts into a coherent narrative of the experiences.” (Van Dijk et al.).

As a result, in addition to psychological preparation, counsel for the witness should separate out vague or inconsistent recollection. It is better for a witness to straightforwardly say “I don’t remember” than to speculate; it strengthens the veracity of what is remembered and minimizes misstatements based on faulty recollection that lawyers jump on to impeach the witness’s total credibility. Often it is impeachment on otherwise insignificant material that can confuse and frustrate the witness and leave him feeling as if he were the one on trial.

While “putting words in the witness’s mouth” or suggesting factual scenarios should be strictly prohibited, the stress and fear naturally engendered by the situation and surroundings lead many witnesses to give short, one-sentence answers that do not adequately portray the witness’s experience, as well as the severity of physical, mental and emotional suffering. In short, much is left unsaid in response to any single question. As such, the attorney “friendly” to the witness should know, through previous discussions with the witness, the particularly important information that the witness possesses and should ask follow-up questions designed to open up the witness without the attorney testifying for him/her. The attorney should have a list of points of information to be obtained from the witness and continue to ask questions until the witness has provided all of the information. The process of obtaining a full story can be difficult, as described above, but it is the attorney’s job to know when the witness’s story is fully aired. It should be the attorney’s goal that, at the end of testimony, the witness feels that he/she has finally been heard and can begin to gain some degree of legitimacy and closure as a result. Probing the witness as he/she recounts the narrative in preparation for testimony can solidify the essential facts in the mind of the witness, make ultimate tribunal testimony flow more fluently and naturally, and make the experience less traumatic for the witness. Again, this should be done in the presence of a trauma specialist, if not by the specialist him/herself, in order to minimize the chances for re-traumatization.

In turn, judges and lawyers for the tribunal should understand that a diagnosis of PTSD does not render a victim’s testimony worthless, but they should also be sensitive to the effects of traumatization on witness testimony. In trying to assess the credibility of a witness, the judge may look for confidence in answers and appearance, both of which may be severely hindered by the trauma’s effect on the individual (Durst). On the other hand, prosecutors in U.S. child welfare cases have expressed concern about “over-preparing” children lest their lack of affect on the witness stand cause jurors to question the veracity of their statements (Whitcomb). Providing judges and lawyers with a greater understanding of, and thus sensitivity to, the effects of the traumatization process on witnesses is therefore crucial to the credibility of the witness.

A training session of lawyers and judges involved in the Tribunal, similar to DC-Cam’s legal training sessions, might be a way to foster this understanding. DC-Cam’s legal coordinator Héleyn Uñac said that she had attended a training session in Kosovo that was aimed at instructing judges and lawyers on how to interview victims of trafficking. The session was only one morning, which was apparently too short for the participants to take to heart. She suggested that any such training session would have to be several sessions, at least, in order for participants to get a long-term appreciation of the sensitivity of traumatized witnesses. The training need not be complicated, merely an overview of the effects of trauma that was repeated until the participants really understood it.

For Cambodia, I propose:

§ An extensive witness preparation program, where psychologists work in conjunction with lawyers to effectively prepare witnesses for trial and cross-examination

§ A training session for judges, lawyers, and maybe members of the press, which aims to increase their awareness regarding the effects of traumatization on witnesses and the possibilities of re-traumatization within the legal setting.

Although witness preparation is perceived as an obligatory component of any trial, I believe that the sensitivity of the subject makes this too important an issue to rest on mere assumptions of sufficiency, especially given the questions surrounding the standards of Cambodia’s legal system. Witnesses have already experienced too much to be further sacrificed in a tribunal.

I believe that an institution such as DC-Cam is in a unique position to either instigate or lobby for formal and extensive programs that will ensure a high level of protection for witnesses’ physical and psychological well-being. Reality may limit the potential for such programs, but I believe that even a small program can have significant effects on the lives of those witnesses in whose name the Tribunal was partially created.

_________________________

Megan Whittaker holds a degree in psychology from Yale University. She wrote this article during her internship in 2005 at the Documentation Center of Cambodia.

Tuesday, November 29, 2005

Governor General shortlisted for war crimes tribunal

Tuesday November 29, 2005
29.11.05 1.00pm
By Rachel Pannett

HO CHI MINH CITY, Vietnam - Governor General Dame Silvia Cartwright could be set to take a serious leap onto the international stage when her current role ends next year, after being short listed by the United Nations for a Cambodian war crimes tribunal.

The former District and High Court judge is the most high profile of three New Zealand candidates named on the UN website. The others are District Court judges Robert Spear and Fred McElrea.

The UN is helping Cambodia set up special mixed courts to try ageing former leaders of the Khmer Rouge regime, accused of killing over a million civilians during the 1970s. It is head hunting five international judges to it on the trial and appeal courts. The 11 short listed judges will be interviewed in New York next week.

Dame Silvia, in Vietnam on a state visit designed to promote New Zealand's trade interests, said she was nervous about the interview -- her first since graduating from law school at Otago in 1969.

"If I don't get selected, I will be pink with embarrassment," she told NZPA.

Dame Silvia, who, in her four years as Governor General has evolved the role into that of a high level diplomat, said sitting on the tribunal would fulfill a goal that has been pressing on her conscience since turning down a chance to try Rwandan war criminals in 1995.

"I felt then that it was something I should be doing, but I couldn't for a whole lot of reasons. It has lurked in the back of my mind ever since."

Her previous international experience includes 8 years on a UN committee set up to eliminate discrimination against women.

If appointed, she will face a harrowing task. The Khmer Rouge seized power in Cambodia in 1975 and killed more than a million people during four years of terror and misrule. When the Khmer Rouge were ousted in 1979 by forces from neighbouring Vietnam, the United States supported the Khmer Rouge exiles and assured their continuing seat in the UN. That kept Cambodian politics in turmoil and prevented the pursuit of justice for the mass killings until March 17, 2003, when, after five years of negotiations, the UN reached a draft agreement with the Cambodian government for the tribunal.

Dame Silvia said her 20 years' experience as a District and High Court judge would make her a good candidate for the role.

"If I am appointed, and become a trial judge, it is going to be really harrowing, no question about that," she said.

"You've got to be physically and mentally strong to cope with even the things that a New Zealand judge does.

"You cannot let it get to you, otherwise you are failing the people who bring their stories before you. You have got to keep the trial going on an even keel, with everyone getting treated the same way.

"It's your job. You go away and you cry in the background, you don't do it in front of people."

Human rights groups fear the Cambodian government's ability to impose its will on the Cambodian judges -- who will make up the majority in both courts -- will pose an obstacle to justice.

It is also feared that, with many likely defendants over the age of 70, time is running out for justice to be served. Many Khmer Rouge leaders have already died of old age, including the notorious Pol Pot and his wife, Khieu Ponnary.

Dame Silvia said today that, if appointed, one of her main tasks would be to work with the other judges to make sure the trial is fair, and independent.

The successful candidates will spend at least a year in Cambodia as the trials play out.

Dame Silvia said her visit to Vietnam has given her an insight into what it would be like to live in this part of the world.

"I'd have to learn some new skills. I've had a pretty privileged life for the last 20-30 years," she said.

"I think it'll be another adventure."

For now, her focus remains on the role of Governor General, and completing the six-day state visit to Vietnam -- her 11th such assignment since 2001.

"This is my job, and I'm going to keep doing it until the day I finish."

Monday, November 28, 2005

Criteria for KR Judge Selection Still Unreleas

The Cambodia Daily
Monday, November 28, 2005
Samantha Melamed
Additional reporting by Thet Sambath

The Cambodian Human Rights Action Committee has called on the government to release the selection criteria and the short-list of possible Cambodian judicial officials for the Khmer Rouge tribunal, following the publication of the UN's list of candidates on Thursday.

"Making the criteria for selection and the list of recommended candidates public prior to final appointment are important steps to increase public participation and confidence in the outcome of the tribunal," the committee said in a statement.

The Supreme Council of Magistracy must appoint one Cambodian co-investigating judge, one co-prosecutor, and three judges to the trial chamber, four to the Supreme Court chamber and three to the pretrial chamber.

Helen Jarvis, adviser to the government's tribunal taskforce, said Sunday that the government would deliver the information in due course.

"The Cambodia criteria have been developed in a more detailed manner and have not yet been released. But it will be released, hopefully within a short period of time," Javis said.

Sean Visoth, the newly appointed director of administration for the tribunal, was too busy to comment.

Sok Sam Oeun, executive director of the Cambodian Defenders Project, urged the government to release the information before making any appointments.

"Before the government appoints any judges, there must be time for the public to comment," Sok Sam Oeun said. "At the least, we want [judges] with integrity, competence, [who are] clean and independent."

Licadho President Kek Galabru said it was unclear on what basis judges would be selected.

"We have followed this issue since 1997 and we know nothing," she said. "Normally, as the tribunal is a tribunal for all of us, as there are no secrets of the state, they should allow the people to know. We have the right to know, according to the Constitution," she said.

In notes dated Friday and posted on his Web site, retired King Norodom Sihanouk suggested that the money required for the tribunal could be better spent.

"With 56.3 million US dollars, we could take out of famine and out of poverty our Little-People, in building for them water reservoirs, weirs, irrigation canals, dams, etc" he wrote.

FACING DEATH IN CAMBODIA

by Peter Maguire
Columbia University Press $29.50, 272 pages

The mass killings in Cambodia still hold a world record for state terror. No government has murdered a greater proportion of its citizens: one in five Cambodians - more than 1.5 million people - died at the hands of the Khmer Rouge. Yet three decades later none of the perpetrators has been held to account. Some, such as Pol Pot, Brother No 1, are dead, but other high-ranking former cadres hold key positions in the current government.

A joint Cambodian-international war crimes tribunal announced two years ago is compromised, according to human rights organisations, by the majority role given to members from the notoriously corrupt national judiciary. It has not yet started work.

This is not for want of information. The Cambodian genocide has been extensively documented. One of the most compelling pieces of evidence is the collection of photographs found in Tuol Sleng, the secondary school turned torture centre in a suburb of Phnom Penh, the capital. Tuol Sleng was the centre of a secret network of prisons where the Khmer Rouge, who ruled Cambodia - under the name of Democratic Kampuchea - between 1975 and 1979,
detained and tortured to death tens of thousands of their countrymen. The victims were accused of a litany of concocted crimes that usually involved espionage for the Vietnamese, the CIA or the KGB (sometimes all three).

When the invading Vietnamese army entered Phnom Penh in 1979, Tuol Sleng was
abandoned, leaving instruments of torture, rotting corpses, bloodstained rooms, records of forced confessions - and thousands of photographs of prisoners who had passed through its gates en route to death. This grim record of suffering is the starting point for two illuminating books about
Cambodia, one by a photographer, the other by a human rights researcher.

Tuol Sleng was made into a museum and is now a routine stop on the tourist trail. Cells and torture rooms are open to the public. The photographs of former inmates are displayed on the walls: mothers clutching children, a boy with a padlock round his neck, a young man stripped to the waist, a number pinned directly into his chest. Of the 14,000 prisoners who passed through Tuol Sleng, fewer than a dozen survived. In a bizarre display of necrokitsch initiated by the Vietnamese, skulls of the dead are displayed in the form of an enormous map of Cambodia.

It's impossible to visit Tuol Sleng without being haunted by these pictures. In an age of genocide, where the horrors of Democratic Kampuchea have been succeeded by Rwanda and Darfur, when the greatest danger faced by the people of many countries is their own government, these images reverberate beyond borders. The failure of justice in Cambodia, despite a huge international presence in the form of UNTAC, the UN mission that administered the country for 18 months in the early 1990s, prefigures failures on the part of the international community to prevent or punish other cases of pathological state violence.

For Nic Dunlop the pictures have a further significance.

He is a photographer with a 15-year career as a chronicler of the Cambodian civil war and its aftermath. For him the photographs have become a symbol both of the haunting power of images and of the failure of documentation - including his own work - to overcome the moral expediency in international relations that has impeded justice. The Lost Executioner is the story of Dunlop's search for Comrade Duch, or Brother Duch, the commandant of Tuol
Sleng, and his discovery, based on a chance encounter and an old photograph, that Duch was living in
Cambodia under a new name, a Christian convert working for a US aid agency. The story is interwoven with the history of modern Cambodia and Dunlop's own experiences. His book is an example of a rare genre: a reflective work by an outstanding photographer who is also a talented writer.

When he first visited Tuol Sleng it gave him a sense of purpose, Dunlop explains. He returned to the UK, lobbied MPs, exhibited his photographs and joined protest campaigns. Today, he writes, that sense of urgency has given way to helplessness at the enormity of what happened and the fate of contemporary Cambodia, now afflicted with all the ills of modernity: endemic corruption, political violence, child prostitution and the worst HIV-Aids epidemic in Asia. Yet the unmasking of Duch - by a feat of visual recollection that probably only a photographer could achieve - is to some extent a contradiction of Dunlop's own sense of powerlessness. It is as a result of his actions that Duch now awaits trial, one of the few Khmer Rouge cadres to be in detention.

For Peter Maguire, also, Tuol Sleng is a symbol of an enduring failure. Maguire is a human rights researcher whose experience in Cambodia leads him to question some of the basic suppositions of the human rights movement. The idea of a universal canon of justice, he suggests, may be a fiction overlaid on a reality too dark to contemplate. Facing Death in Cambodia is a scholarly, yet personal narrative of his own research and the intellectual and ethical dilemmas faced by human rights activists. It offers restlessly self-critical accounts of his interactions with Cambodians, including Nhem En, who took many of the Tuol Sleng photographs and who later hawked his pictures and sold interviews to western journalists until his recent death from Aids. The awkward but intimate relations between local informants and foreign researchers are portrayed with fluency and salutary unease.

In recent years the Tuol Sleng photographs have been published widely outside Cambodia, displayed in galleries and printed in glossy picture books. These passport photos for the afterlife, as Maguire calls them, have acquired the cachet of art. Nhem En took great pride in the technical perfection of his photographs, a refuge from his responsibility for taking them. Their publication, Dunlop warns, risks complicity in the aestheticisation of violence. These are pictures that urgently require the contextualisation that Dunlop and Maguire provide. With their careful attention to the words of Cambodians and engagement with the Cambodian world view, their books are significant contributions to the understanding of the country, past and present. There may be no justice in the present, but books like these will
surely inform the verdict of history.

John Ryle is chair of the Rift Valley Institute and has reported from Cambodia for The New Yorker.

Saturday, November 26, 2005

Preah Reach Kret (Royal Decree)

We,

His Majesty Norodom Sihamoni

King of Cambodia

  • having taken into account the Constitution of the Kingdom of Cambodia;
  • having taken into account Preah Reach Kret No. NS/ RKT/0704/124 dated 15 July 2004 on the Appointment of the Royal Government of Cambodia;
  • having taken into account Preah Reach Kram No. 02/NS/94 dated 20 July1994 promulgating the Law on the Structure and Functioning of the Council of Ministers;
  • having taken into account Preah Reach Kram No. NS/RKM/0801/12 dated 10 August 2001 promulgating the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea;
  • having taken into account Preah Reach Kram No. NS/ RKM/1004/004 dated 19 October 2004 promulgating the Ratification of the Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the period of Democratic Kampuchea;
  • having taken into account Preah Reach Kram No. NS/ RKM/1004/006 dated 27 October 2004 promulgating the Amendments to the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea;
  • having taken into account the request by Samdech Prime Minister of the Royal Government of Cambodia,

hereby decide

Article 1: to appoint the senior level of the Office of Administration of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea as follows:

1. His Excellency Sean Visoth Director of the Office of Administration

2. His Excellency Hem Kranh Tony Reserve Director of the Office of Administration

Article 2: Samdech Prime Minister of the Royal Government of Cambodia shall carry out all procedures that may be necessary to implement this Reach Kret.

Article 3: This Reach Kret shall be effective from the date of its signature.

(signed and sealed)

Norodom Sihamoni

PRL.0511.497

Done in the Royal Palace, Phnom Penh on 12 November 2005

No. 435 Ch.L

For publication

Phnom Penh Municipality, 22 November 2005

Secretary-General for the Government

(signed and stamped)

Nady Tan

_______________________________

NS/RKT/1105/466

Preah Reach Kret (Royal Decree)

We,

His Majesty Norodom Sihamoni

King of Cambodia

  • having taken into account the Constitution of the Kingdom of Cambodia;
  • having taken into account Preah Reach Kret No. NS/ RKT/0704/124 dated 15 July 2004 on the Appointment of the Royal Government of Cambodia;
  • having taken into account Preah Reach Kram No. 02/NS/94 dated 20 July1994 promulgating the Law on the Structure and Functioning of the Council of Ministers;
  • having taken into account Preah Reach Kram No. NS/RKM/0801/12 dated 10 August 2001 promulgating the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea;
  • having taken into account Preah Reach Kram No. NS/ RKM/1004/004 dated 19 October 2004 promulgating the Ratification of the Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the period of Democratic Kampuchea;
  • having taken into account Preah Reach Kram No. NS/ RKM/1004/006 dated 27 October 2004 promulgating the Amendments to the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea;
  • having taken into account the request by Samdech Prime Minister of the Royal Government of Cambodia,

hereby decide

Article 1: to assign Ms Michelle Lee to be Deputy Director of the Office of Administration of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea;

Article 2: Samdech Prime Minister of the Royal Government of Cambodia shall carry out all procedures that may be necessary to implement this Reach Kret;

Article 3: This Reach Kret shall be effective from the date of its signature.

(signed and sealed)

Norodom Sihamoni

PRL.0511.501

Done in the Royal Palace, Phnom Penh on 12 November 2005

No. 431 Ch.L

For publication

Phnom Penh Municipality, 21 November 2005

Secretary-General for the Government

(signed and stamped)

Nady Tan

Top Administrators Named to Khmer Rouge Tribunal

Director and Deputy Director of Office of Administration of Extraordinary Chambers Appointed by Royal Decree

According to procedures defined in the Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the period of Democratic Kampuchea, appointment of the two top administrators for the Khmer Rouge Trials has now been finalised.

His Majesty King Norodom Sihamoni signed Royal Decrees appointing His Excellency Sean Visoth as Director of the Office of Administration of the Extraordinary Chambers, and assigning Ms Michelle Lee as Deputy Director, a position to which she was appointed on 14 October by the Secretary-General of the United Nations.

His Excellency Sean Visoth has held a number of senior administrative posts within the Cambodian government (including in the Office of the Council of Ministers, the Ministry of Foreign Affairs and the Supreme National Council) and since 1999 has been the Executive Secretary of the Cambodian Government Task Force for Cooperation with Foreign Legal Experts for the Preparation of the Proceedings for the Trial of Khmer Rouge Criminals. His Excellency Tony Kranh, Under-Secretary of State of the Office of the Council of Ministers and member of the Council of Jurists was appointed as Reserve Director in the same Royal Decree.

Ms Lee will lead a UN Startup Assessment Mission to Phnom Penh in early December to discuss with the Cambodian Government Secretariat of the Task Force details of the establishment of the Extraordinary Chambers over the coming months.

Both the United Nations and Cambodian sides are now in the process of selecting the judicial officers (judges, co-investigating judges and co-prosecutors), determining other senior administrative positions and making other preparations for the Extraordinary Chambers.

As soon as sufficient funds have been pledged, the necessary alterations will be commenced to enable the premises at Kambol to be used for court and administrative activities of the Extraordinary Chambers.

At the present moment the $43 million of the United Nations side of the budget is almost fully subscribed, but the Cambodian side still lacks $10.8 million. The Cambodian Government is appealing to other governments for urgent action to help meet this gap through bilateral contributions.

Phnom Penh, 25 November 2005

Activists demand details on Cambodia's Khmer Rouge trial

Last Updated 26/11/2005, 11:27:06

The Cambodian Human Rights Action Committee says names of Cambodian judges and prosecutors short-listed to serve on a planned tribunal of Khmer Rouge leaders should be made public,

The committee which is a grouping of 18 non-governmental organisations, also demanded that the selection criteria used by the government be disclosed.

It says publicizing the criteria and the candidates under consideration decreases the risk that the public will view the selection process as the result of political influence.

The statement came as the United Nations released the names of 21 possible international judges and co-prosecutors to be interviewed by UN Secretary General Kofi Annan in early December.

ACTIONS SPEAK LOUDEST: International Efforts Against Genocide in the Past 50 Years Haven’t Been Enough

THE CAMBODIA DAILY

Issue number 402

Saturday and Sunday, November 26-27, 2005


By Michelle Vachon

The book “Beyond the ‘Ne­ver Agains”’ speaks of reali­ties that one would rather not face, raising hard questions about our humanity and so-called civilization.

People quoted in the 168-page book discuss genocide and bring that crime down to specifics that allow no one to just walk away. They talk not only of what to do af­ter genocide, but also of how to prevent it, and what the interna­tional community has done and could do to stop it.

“We want you to know that you have a choice,” Yehuda Bauer, who headed the Hebrew Univer­sity's holocaust studies for nearly three decades in Jerusalem, is quoted as saying.

“You have a choice between evil and good, that you not only can, but must choose which side you are on, the murderers and the hunters, the indifferent bystanders, the collaborators,” or the side of people who combat genocide, Bau­er said.

Published in recent months by the Swedish government, the large-format, richly illustrated book reviews issues raised at the international conferences on geno­cide organized by Sweden in 2000, 2001, 2002 and 2004.

It consists of interviews with le­gal and genocide experts who at­tended the conferences held in Stockholm, and a series of ex­cerpts from speeches made dur­ing the events.

Its title refers to the words “Ne­ver again” put on a memorial at the former Nazi concentration camp of Dachau in Germany. These words became a rallying cry against geno­cide after World War II as it be­came known that the Nazis had exterminated more than six mil­lion people during the 1930s and 1940s.

The Nazi crimes led to the adop­tion of the 1948 UN Convention on the prevention and punishment of genocide. As the book title indi­cates, participants at the confer­ences asked themselves what had been done against genocide since then.

Not enough, it seems, given the examples in the last 50 years that the experts note in the book and that make the Khmer Rouge kill­ing of about 1.7 million people seem almost commonplace.

“Since the founding of the United Nations in 1945, there have been 55 genocides and politicides [mass killings for political consid­erations, such as the elimination of political opponents in Argentina in the 1970s and 1980s],” said Greg­ory Stanton, the president of the NGO Genocide Watch who found­ed the Cambodian Genocide Pro­ject in 1982 to bring Khmer Rouge leaders to trial.

“Over 70 million people have died, most murdered by their own governments, [which is] more than in all the wars combined.”

Those experts look at those crimes from the standpoint of human beings slaughtered rather than legal definitions because, they say, legalities have so often delayed action.

As Jorge Taiana, Argentina's secretary of foreign affairs, pointed out: “While the states were still debating [at the UN] whether they would call it genocide or not, 200,000 people had already been killed” in Rwanda in 1994. By July of that year, 800,000 Rwandans of the Tutsi ethnic group were exterminated.

Those quoted insist on the need to intervene as soon as a govern­ment or a powerful faction in a re­gion gets into large-scale torture and killing, well before the maimed and the dead turn into millions.

Wherever atrocities become policy, the international community should investigate and act when needed, they say.

“Let's talk about ‘atrocity crimes’ and not focus on the ‘G’ word,” said Gareth Evans, president of the International Crisis Group.

“Leave it to the judges, the pros­ecutors and the courts to work out which crimes—genocide, atrocity crimes or crimes against humani­ty—have actually been committed.”

Unlike war, during which killing may be done for specific political or economic purposes, atrocity crimes make “killing another man who somehow differs by ethnic, religious or other features, into a usual social norm of everyday be­havior,” said Ilya Altman, co-chair­man of the Center for Holocaust Research and Education in Mos­cow.

All that stands between humani­ty and a sweeping authorization to destroy is one single principle: The sanctity of life, said Michael Nau­mann, publisher of the leading German weekly publication Die Zeit. “The Nazi [leaders] did not believe in it—period,” he adds.

That regime rose at a time when German visionaries, artists and thinkers shone in countless fields in Europe.

“It shattered the illusion that the cultivation of the arts and philoso­phy, of science and technology would render man immune to racism, to blood lust, to intoxica­tion with power, to brutal, insa­tiable tyranny,” Ehud Barak, then-­prime minister of Israel, said at the 2000 conference.

“There are lots of ordinary peo­ple without any particular inclina­tion to evil who seem very peace­ful. But in a particular situation, they can eventually commit incredible crimes. That's why the whole issue of prevention, repara­tion and memory is so important,” said Taiana, who was jailed for seven years during Argentina's Military Junta regime in the 1970s and 1980s.

But there can be no prevention without global international sup­port, said Youk Chhang, director of the Documentation Center of Cambodia.

And the international community has a rather dismal record on that count.

In the 1980s, the Khmer Rouge was able to regroup with interna­tional help on the Thai border while evidence of that regime's genocide was accumulating.

Today, that same international community has yet to find a solu­tion for the Sudanese region of Darfur as, reports the UN Child­ren’s Fund this month, “one of the world's most severe humanitarian crises continues to deteriorate.”

Since early 2003, nearly 1.9 mil­lion people—most of them less than 18 years old—have had to flee their homes in Darfur, Unicef said. The death toll due to starvation, dis­ease and violence may range from 180,000 to nearly 400,000 people.

The international community only began to pay attention to Darfur’s situation last year.

And yet, security reasons abound for wanting the exodus resolved, says Bauer, adding: “Masses of re­fugees are moving west and south, creating humanitarian problems and destabilizing parts of the Af­rican continent.”

However, oil has been found in Sudan, which may explain China and other countries’ reluctance to unduly pressure the Sudanese government to end the killing, he said.

People act out of both their own interest and moral principles, said Bauer. So in order to get govern­ments and people in general to take action, “we have to do so in a way that will appeal to the moral sensitivities of ordinary people and ordinary politicians,” he said.

One way to accomplish this is to promote the concept of "responsi­bility to protect” and to present human rights violations on a massive scale as threats to international peace and security, Taiana said.

When a government is perse­cuting its own people, the interna­tional community should inter­vene in spite of that country’s sov­ereignty, but according to set rules, he said.

This can only be done if democ­racy prevails internationally, ex­perts say in the book.

“Only the democratization of people can allow societies to be­have according to the universal values of freedom, tolerance and democracy,” said Kay Rala Xanana Gusmao, president of East Timor.

Another way to enroll people against genocide is school educa­tion, said Swedish Prime Minister Goran Persson.

“If you're presented with histori­cal settings and human lives, then perhaps you begin to think, ‘That could have been me.’.... But just because there have been abuses, we’re not automatically aware they have been committed,” which is why education must be conducted generation after generation, he said.

“One of the most hair-raising things of recent months...was the picture that appeared in January in the newspapers around the world of Britain’s Prince Harry wearing a [Nazi] swastika armband to a party,” Evans said.

“That his generation is so igno­rant, that he is so ignorant of the significance of what he did, tells us that you can never do too much when it comes to trying to teach these lessons.”

Having young people connect with genocide victims and develop a sense of responsibility towards them is extremely difficult, says Stephen Smith, director of the Beth Shalom Holocaust Memorial and Education Center in England.

Talking to people who lived through genocide may help them turn facts into human feelings, he added.

However, “people see survivors’ testimonies as exaggerations—­when they testify how people were torn to pieces, how children were burned,” said Youk Chhang. “If such testimony is to be construc­tive, the victim has to appear strong. If you show your weak­ness, that allows the perpetrator to grow stronger.”

Having people grasp what geno­cide truly means is not possible, said Youk Chhang.

“Genocide cannot be explained in words—no one can understand how it felt.”

But, he said, what is important is to promote the idea that “No one has the right to take away your life.”

Genocide prevention and control also includes rebuilding a country afterwards.

“People too easily say, ‘let's move on,' but they forget that there are [genocide survivors] who cannot follow because they have been so deeply affected, so damaged,” says Esther Mujawayo-Keiner, a Rwan­da genocide survivor and co-founder of the support group Avega for genocide widows in her country.

“It's like a situation in which you are being asked to walk despite the fact that you don't have legs anymore,” she said. “We need to be put back together, to be reconciled with ourselves.”

And yet, the cost of peace may be survivors having to live with the ones who committed the crimes.

“In our case, the suffering was accepted in the interests of a greater objective, the indepen­dence of our country,” said Xanana Gusmao.

When UN experts recommend­ed an international criminal court for East Timor, they seemed to consider "nothing other than try­ing and punishing people," Xanana Gusmao said.

“For those experts, life operates according to the scales of justice-as though there is justice in the world...as though under-devel­oped, developing or small coun­tries do not feel the law of the strong hanging over their heads.

“Real justice is social justice, and our commitment should be to give our people a dignified standard of living,” he said.

But international law and tribu­nals may serve a purpose as a warn­ing to leaders contemplating mass murder, said Raul Lago, secretary of the Presidency of Uruguay.

In addition, laws that transcend borders have become essential since perpetrators now operate worldwide, such as a Muslim mi­nority with a radical Islamic agen­da, which, Bauer said, “wants basi­cally to convert or eliminate Chris­tians, Jews and other non-Mus­lims.”

But this may lead to reaction no less disquieting, said Naumann.

“The Guantanamo policies of the United States, policies which are astonishing and scary,” of sub­jecting suspected Islamic radicals to, according to reports from the US Federal Bureau of Investi­gation, “classic torture,” he added