Kry Suy Heang
DC-Cam Outreach Staff
I recently made my first visit to Svay Khleang, a Cham Muslim village in Kampong Cham Province , well-known for its historical background in struggling for freedom against the Khmer Rouge regime. The visit provided me with much new information, both intellectual and spiritual.
Before arriving at Svay Khleang, reading a book written by Osman Ysa published by the Documentation Center of Cambodia (“The Cham Rebellion”) formed an image in my mind regarding the Cham community- in a word, solidarity. To prevent their religion from being destroyed through systematic persecution, the entire Cham community unanimously and audaciously stood up against Khmer Rouge's cruel treatment. Although they seemingly knew that it would result in disaster, they still fearlessly rose up against the Khmer Rouge. Ultimately, only 600 out of 6,200 Chams (1970's population figure) were able to survive the regime’s terror. (Osman Ysa, 2006.)
Our group of approximately 30 people from the Documentation Center of Cambodia (DC-Cam) arrived at the village on 21 October 2009 to spend 6-10 days in the local community. The aim of the program was to engage the local community in the ongoing Khmer Rouge tribunal through community education and potentially civil party status. Immediately upon arriving, I could feel the warmth of the villagers’ friendliness mixed with their simple and traditional lifestyle. What I had thought earlier about the Cham community was gradually becoming obvious after one particular occurrence - a crowd of daring children struggling for Num (cake) during the village forum. From a quick glance at this situation, one must have thought that these children were so vicious that they thought carelessly about their own safety.
However, at the same time, if we look deeper into the situation, these children have been equipped with the same sense of solidarity as their Cham elders. These children might believe that they must act as a whole if they want to get what they desire. Therefore, they'd better try it, despite knowing that sometimes their reward will be nothing. Only with such a small thing they were so cooperative. How about fighting for their own values and freedom? For sure, they would vigorously and courageously fight for it (particularly if we reflect on the case of the rebellion in late 1975).
I believe that a strong bond has been forged among the villagers, made stronger by their common culture and religion. For example, a huge number of enthusiastic villagers attended the forum on 25 October, where community leaders and DC-Cam staff spoke about the Khmer Rouge period, the Cham Rebellion against the Khmer Rouge, and the search for truth and accountability. There was also a screening of two short films: one with interviews of S-21 survivors and a S-21 guard, and one clip of Duch’s apology at the Tribunal. The villagers showed great interest in the film screening. In responding to Duch's apology, one elder male villager stood up and said that "it's not acceptable for he had killed so many people. So, how can an apology compensate for everything we lost, especially our family members' lives?"
From this remark, it can be seen that the fire of anger and the need for justice is still burns in their hearts and may never be put out unless real justice is achieved.
However, many of the Cham women whom I met seemed not to have such strong feelings. Although many of their family members had been killed during DK and they themselves have endured for such a long period of time, they are now content with living their lives and seem prepared to let bygones be bygones. A case in point is Yea Ti, who claimed that nearly 30 of her relatives had been massacred, and contrary to what I expected, she preferred not to fill out the victim’s complaint form.
I was amazed at her decision. After having talked to her, I realized that there were some significant reasons why she didn’t want to participate in the trial. To begin with, seeking justice for her is so long overdue that she has already reconciled herself to this broken society. She has been calmed by gradually allowing religion to control her. She inferred that time is a great healer by giving me an example that if she had known the perpetrator earlier, she would have publicly killed him by her own hand without any hesitation. However, she said, now it's been too long to have such a strong feeling of an eye for an eye. In return, she compared the term revenge as the growing climbing plant (Daem Voa). Then the Voa of vindictiveness will never cease growing if one keeps watering it. Therefore, "why not pull its roots out and throw it away so as to live with peace of mind." Also, she stated that she didn't know the real perpetrators. Particularly, she is now too old to think of revenge but prefers a peaceful life.
I do sympathize with her. Besides what she had mentioned, the rationale behind her position can be easily understood. As a matter of fact, after 1979 the majority of the survivors of Muslim community in Svay Khleang were women and children. As a result, they are more or less likely to still suffering not only on the inside but on the outside as well. Inside one is concerned with the great suffering of losing family members, while outside pressure forces them to re-integrate into the broken society with their empty hands. They are somehow fearful of anything that, through their own perspective, might cause them further harm or trouble.
Regardless of the terrible consequences of the Khmer Rouge regime that has scared the Cham people for life, they still endure the difficulties and live in a society with their own values and dignity intact. While a few choose to forget, a majority of them still continue to search for justice for all they have lost. I really appreciate them for their enthusiasm in searching for the truth - justice, the root of the vindictive Voa. As long as we cannot find its roots, never will we be able to effectively extinguish it completely, and the root continues growing. This wound of great suffering will never be effectively healed if we leave it alone. One day, the wound will come back and hurt us again when we touch it. To remedy it completely, seeking effective medicine - justice - will be the only way to handle such an unforgettable wound.
Some photos by Kith Serey: http://www.dccam.org/Projects/Living_Doc/Photos/2009/Forums/Svay-Khlaing_Kg-Cham_Oct-25_09/index.htm
Wednesday, November 4, 2009
GENOCIDE EDUCATION IS GENOCIDE PREVENTION Teacher's Guidebook: The Teaching of "A History of Democratic Kampuchea (1975-1979)"
Published by The Documentation Center of Cambodia and The Ministry of Education, Youth and Sport
~ 2009
COVER PHOTO: Children at Angkor Wat. After the collapse of the Khmer Rouge regime on 7 January 1979, hundreds of thousands of children were left orphaned. This photo was taken in 1979 by a Vietnamese soldier.
Preface
Cambodia has experienced different historical periods since its beginning, some periods of prosperity while others of sadness. There was one dark period, in particular, that lasted for three years, eight months and twenty days under the rule of Democratic Kampuchea regime. In this relatively short, but most atrocious period, Cambodia’s national and social fabric was destroyed. Over a million of our people perished and so many more suffered. Rebuilding our country has been far from easy: subsequent leaderships along with survivors and their families have had to pick up the pieces to restore Cambodia, a process that has taken decades and still in progress today.
As custodians of our own dark chapter in history, we are indebted with grave responsibilities: to memorialize, remember, and pass down knowledge of events, acts, and thoughts that give rise to atrocious crimes and inhumanity. As such, the Ministry of Education, Youth and Sport has established a national curriculum to integrate this painful, yet crucial, history into all Cambodian public schools.
Younger generations of Cambodians must understand and know about this grave past in order to learn from our past mistakes, prevent such events from happening again, and recognize and know when to stand up for fundamental principles of humanity, integrity, and justice.
Im Sethy
Minister of the Ministry of Education, Youth and Sport
~ 2009
COVER PHOTO: Children at Angkor Wat. After the collapse of the Khmer Rouge regime on 7 January 1979, hundreds of thousands of children were left orphaned. This photo was taken in 1979 by a Vietnamese soldier.
Preface
Cambodia has experienced different historical periods since its beginning, some periods of prosperity while others of sadness. There was one dark period, in particular, that lasted for three years, eight months and twenty days under the rule of Democratic Kampuchea regime. In this relatively short, but most atrocious period, Cambodia’s national and social fabric was destroyed. Over a million of our people perished and so many more suffered. Rebuilding our country has been far from easy: subsequent leaderships along with survivors and their families have had to pick up the pieces to restore Cambodia, a process that has taken decades and still in progress today.
As custodians of our own dark chapter in history, we are indebted with grave responsibilities: to memorialize, remember, and pass down knowledge of events, acts, and thoughts that give rise to atrocious crimes and inhumanity. As such, the Ministry of Education, Youth and Sport has established a national curriculum to integrate this painful, yet crucial, history into all Cambodian public schools.
Younger generations of Cambodians must understand and know about this grave past in order to learn from our past mistakes, prevent such events from happening again, and recognize and know when to stand up for fundamental principles of humanity, integrity, and justice.
Im Sethy
Minister of the Ministry of Education, Youth and Sport
Govt to take back KR canals
Thursday, 22 October 2009 15:02 Thet Sambath
Plans for repair by Pursat officials draw outcry from some farmers.
Photo by: Document Centre of Cambodia
Workers build irrigation tunnels during the Khmer Rouge regime.
FARMERS in Pursat province are bristling at local officials’ attempt to
reclaim Khmer Rouge-era canals, some of which have deteriorated so much over
the years that they have been filled in with soil.
Um Bun Soeun, chief of O’Tapong commune in Pursat’s Bakan district, said
officials had informed villagers of their plan to reclaim and repair the
canals about two weeks ago.
“We have previously informed all the people here to keep the canals as
canals and not to fill them up,” he said. “Now, we have told them that the
canals are the property of the state. If the government needs to repair and
rebuild them, then people have to hand them over to the government.”
He added that farmers in the commune would not have access to the canals
during the repair process, but could not say how long the process would
last.
Om Chhoun, a rice farmer, said any repairs would not make up for the
disruption of being barred from the canal system. He acknowledged, though,
that local farmers had no choice but to comply with the officials’ order.
“All of us dug the canals. We struggled to make them,” he said. “People died
and were killed making these canals, so we have to make sure they are
benefiting the people.”
He added: “We are not opposed to the idea of the government’s policy, but we
have to use them for our own purpose.”
Phoung Vy, another farmer in Bakan, also said the canals should be used to
benefit the people and expressed concern that the government would assume
control over them, even temporarily.
Dire straits
However, he acknowledged that some of the canals were in dire need of an
upgrade.
In a 2007 article in Searching for the Truth, a magazine by the
Documentation Centre of Cambodia (DC-Cam), Jeffrey Himel, owner of the
development-focused company Aruna Technology Ltd, noted that the Khmer Rouge
irrigation system was “deeply flawed” and prone to deterioration.
“The primary canals were too wide and deep, didn’t command many of the
fields they were meant to serve, and inevitably were eroded by the annual
flood flows,” he said.
DC-Cam Director Youk Chhang said he agreed that the canals needed serious
work.
“We haven’t fully researched the impact of the canals and dams built by the
Khmer Rouge on the people, but some dams have flooded people’s farmland and
villages, while others have provided benefits to the people,” he said. “But
if they are so useful, then why didn’t anyone have rice to eat during that
time?”
Sao Daroeun, governor of Bakan district, said local reclamation of the
canals was part of a broader government plan. Officials from the Ministry of
Water Resources and Meteorology could not be reached for comment Wednesday.
Plans for repair by Pursat officials draw outcry from some farmers.
Photo by: Document Centre of Cambodia
Workers build irrigation tunnels during the Khmer Rouge regime.
FARMERS in Pursat province are bristling at local officials’ attempt to
reclaim Khmer Rouge-era canals, some of which have deteriorated so much over
the years that they have been filled in with soil.
Um Bun Soeun, chief of O’Tapong commune in Pursat’s Bakan district, said
officials had informed villagers of their plan to reclaim and repair the
canals about two weeks ago.
“We have previously informed all the people here to keep the canals as
canals and not to fill them up,” he said. “Now, we have told them that the
canals are the property of the state. If the government needs to repair and
rebuild them, then people have to hand them over to the government.”
He added that farmers in the commune would not have access to the canals
during the repair process, but could not say how long the process would
last.
Om Chhoun, a rice farmer, said any repairs would not make up for the
disruption of being barred from the canal system. He acknowledged, though,
that local farmers had no choice but to comply with the officials’ order.
“All of us dug the canals. We struggled to make them,” he said. “People died
and were killed making these canals, so we have to make sure they are
benefiting the people.”
He added: “We are not opposed to the idea of the government’s policy, but we
have to use them for our own purpose.”
Phoung Vy, another farmer in Bakan, also said the canals should be used to
benefit the people and expressed concern that the government would assume
control over them, even temporarily.
Dire straits
However, he acknowledged that some of the canals were in dire need of an
upgrade.
In a 2007 article in Searching for the Truth, a magazine by the
Documentation Centre of Cambodia (DC-Cam), Jeffrey Himel, owner of the
development-focused company Aruna Technology Ltd, noted that the Khmer Rouge
irrigation system was “deeply flawed” and prone to deterioration.
“The primary canals were too wide and deep, didn’t command many of the
fields they were meant to serve, and inevitably were eroded by the annual
flood flows,” he said.
DC-Cam Director Youk Chhang said he agreed that the canals needed serious
work.
“We haven’t fully researched the impact of the canals and dams built by the
Khmer Rouge on the people, but some dams have flooded people’s farmland and
villages, while others have provided benefits to the people,” he said. “But
if they are so useful, then why didn’t anyone have rice to eat during that
time?”
Sao Daroeun, governor of Bakan district, said local reclamation of the
canals was part of a broader government plan. Officials from the Ministry of
Water Resources and Meteorology could not be reached for comment Wednesday.
Procedural Justice: A Exploration of the ECCC’s Interim Appellate Review Regime
Mary U. Irozuru
Columbia Law School — New York , N.Y. , J.D. Candidate 2011
Summer 2009 Legal Associate, Documentation Center of Cambodia
The legitimacy of proceedings at the Extraordinary Chambers in the Courts of Cambodia (ECCC) will be judged, in large part, on its ability to ensure procedural justice, not just for the victims of the Khmer Rouge, but for the accused as well. The ability of the parties to a proceeding to request an interlocutory appeal is an important component of procedural fairness. An interlocutory appeal, also referred to as interim review, is an appeal of a non-final decision while the proceedings are still in progress. In international criminal proceedings, interlocutory appeals operate as a procedural check where the rights of a party to the proceedings are at risk of being violated by a decision of the court. Though this remedy is universally deemed exceptional in criminal proceedings, many international criminal courts have permitted the parties to request interim review of a wide range of issues.
In establishing rules for interlocutory review, or an interim review regime, international and hybrid national/international courts must, not only, make accommodations for the unique challenges present in international criminal proceedings, but they must also balance competing interests, namely the Defense’s right to a fair trial and right to an expeditious trial. However, the ECCC’s interim appeal regime provides insufficient protection for the rights of the Defense and is inconsistent with international practice. This article examines a number of these concerns and explores some corrective measures the ECCC could adopt.
I. The ECCC’s should not have a restrictive interim appeal regime and a restrictive final appeal regime
At the ECCC, the Defense only has limited rights to appeal interim decisions. Defendants at the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, collectively known as the “Ad Hoc Tribunals”), and the Special Court for Sierra Leone (SCSL) have greater rights of appeal. The ECCC’s restrictive regime is not well suited for the its similarly restrictive regime for appellate review of final decisions. To ensure that all decisions involving issues of fairness can be reviewed, without unduly delaying proceedings, a permissive interim appeal regime should be coupled with a restrictive final appeal regime, or vice versa.
Before the amendments to the ECCC Internal Rules in 2008, the accused could request an appeal at judgment of “any issues of fact and law, against decisions of the Trial Chamber.” However, after these amendments, this broad right to appeal was considerably restricted. Currently, the Supreme Court Chamber will only hear final appeals on the following grounds: “a) an error on a question of law invalidating the judgment or decision; or b) an error of fact which has occasioned a miscarriage of justice.” Additionally, the amended rules call for higher standards of admissibility for appeals at the final judgment stage. No longer can the accused submit a brief request, containing the reasons for the appeal; the new provisions require that the accused either specify the alleged error of law and demonstrate how it invalidates the decision or specify the alleged error of fact and demonstrate how it occasioned a miscarriage of justice. Each ground of appeal must be supported with arguments and authorities.
This move toward a restrictive approach to appeals at the final judgment stage should have triggered a more permissive approach to interim appellate review for the Defense. Where there is no right during the trial or after the trial to request a review of a matter involving the fundamental rights of the accused, the legitimacy of the entire proceedings may be questioned. Matters concerning the Defense’s right to an expeditious trial and the interference with the Defense’s ability to develop a defense strategy, among others, may not be afforded appellate review at any stage of the proceedings.
II. The ECCC’s overall appellate review regime is inconsistent with international and national criminal practice
The ECCC limits the Defense’s right to appeal interim decisions, but does not limit the Prosecution’s rights. Neither the ICTY, the ICTR, the SCSL, nor the International Criminal Court (ICC) limit the appeal rights of the accused with the respect to those granted the Prosecution. Further, none of these other courts uses a regime for appellate review of final judgments that is as restrictive and inflexible as the one in place at the ECCC. Instead they appear to approach appellate review holistically, by permitting appellate review of fundamental issues at the final judgment stage where it is unavailable at the interlocutory stage.
For example, the ICC, which has the most restrictive interim review regime, appears, at least facially, to take the most permissive approach to appeals at the final judgment stage. Its regime for final appellate review permits appeals of the following: (i) procedural error, (ii) error of fact, (iii) error of law, or (iv) any other ground that affects the fairness or reliability of the proceedings or decision. A requirement that the error of law invalidate the decision and that the error of fact occasion a miscarriage of justice might be considered a heightened standard for errors of law and fact. Unlike the ECCC, the ICC does not require this heightened standard. Moreover, the ICC permits appellate review of procedural errors and any other ground affecting the proceedings fairness and reliability, a term that can be interpreted quite broadly.
The other courts discussed in this article also have more permissive final appellate regimes. The SCSL, for instance, permits the review of procedural errors, in addition to the grounds permitted under the ECCC. Though the Ad Hoc Tribunals also require that the error of law invalidate the decision and that the error of fact occasion a miscarriage of justice, they differ from the ECCC is one important way. The ICTY and ICTR Appeals Chambers (AC) are allowed to vary the grounds for final appeals, upon a good showing. This not only gives the court some flexibility, but it also appears to permit the appeal of certain issues at the final judgment stage that were not appealable during the trial.
Appellate review at the ECCC is also inconsistent with the practice in the French system. French courts “look at the fairness of procedures globally, allowing the absence of one guarantee to be counterbalanced by the existence of another.” Though, like the ECCC, the French criminal system restricts the accused’s right to interim review, what distinguishes the French civil system from the ECCC is that both the Prosecution and the Defense can initiate a full review of the facts and law of the case at the final judgment stage. This would be like getting a new trial. Issues that could not be reviewed during the first trial, will be reviewed at the second. This counter-balancing is absent from the ECCC’s appellate regime.
III. The ECCC’s restrictive approach to interim review interferes with the defense’s right to a fair trial
Historically, efforts by defense lawyers to provide adequate representation for their clients in international criminal proceedings have been obstructed by a lack of human and economic resources compared to those afforded the prosecution. Hence, at the “heart” of modern international criminal justice is the principle of equality of arms, a component of the right to a fair trial. The principle implies that “each party must be afforded a reasonable opportunity to present his case — including his evidence — under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.” The following subsections will explore two instances in the ECCC’s pre-trial proceedings where the Defense’s restricted access the interim appellate review places it at a disadvantage in relation to the Prosecution.
(a) The Defense’s minor role in fact-finding coupled with its limited right to appeal investigative actions places it at a substantial disadvantage vis-à-vis the Prosecution
At the ECCC, the Defense is not permitted to conducted its own investigation; it may only request that the Office of the Co-Investigating Judges (OCIJ) undertake certain investigative actions or pursue additional expert reports on its behalf. Though the OCIJ is not required to pursue these requests, the Defense is given a right to appeal the refusal. However the Defense has no right to challenge the manner in which the request, if accepted, is satisfied.
According to the ECCC Internal Rules, the OCIJ may delegate investigative tasks to the Judicial Police or the ECCC Investigators. The Judicial Police operates under the sole instructions of the Co-Prosecutors during the preliminary investigation stage, the OCIJ during the judicial investigation stage, and the Pre-Trial Chamber (PTC) during supplementary investigations. The Judicial Police are not permitted to seek or take orders from any other person in carrying out their investigative functions. Nor are the Judicial Police permitted to question the accused. Similarly, the ECCC Investigators are to conduct their investigations in accordance with the requests of the Co-Prosecutors or the OCIJ, depending upon the stage of the proceedings, and are not permitted to question the accused.
Should the Defense request that the OCIJ pursue a particular investigative action and should the OCIJ agree to pursue that lead, there is no guarantee that the lead will be pursued in a manner most helpful to the accused. Moreover, there is no remedy to through which the Defense can seek an expanded or altered focus for the investigative action. Without a more expansive right to interim appellate review, the Defense’s ability to present its case is compromised.
The ability of the Defense to influence the investigation or the evidence upon which the trial will be based is greater at international courts. At the ICC, the Defense is also not involved in pre-trial investigations. Nonetheless, it may fully challenge the evidence and provide its own evidence during the confirmation hearing. It may also request approval to appeal any pre-trial decision that “would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” Similarly, the Ad Hoc Tribunals do not permit the Defense to participate in the investigation; however, the Defense may request an interlocutory appeal to challenge the investigative action.
Notably, the lack of control over the manner in which an investigation is conducted is a common criticism of the French criminal system, upon which Cambodian Law and Internal Rules are based. Though the investigating police are operating under the judge’s orders, even the judge “cannot ensure that such orders are fully complied with.” The ECCC’s adoption of this French law feature without adapting it to address the investigative challenges of international proceedings and the heightened necessity for equality of arms in international criminal proceedings is problematic.
(b) The Defense’s inability to independently challenge the substance of the Closing Order places it at a disadvantage vis-à-vis the Prosecution and is inconsistent with international criminal practice
At the ECCC, the Closing Order is functionally equivalent to an indictment. The Closing Order contains the material facts of the indictment, their legal characterization, the relevant criminal provisions, and the nature of the accused’s criminal responsibility. While the Prosecution is permitted to appeal the Closing Order issued by the OCIJ, the Defense cannot. This places the Defense on unequal footing with the Prosecution and hampers the Defense’s ability to adequately prepare its case.
Errors in the Closing Order with the potential to vastly alter the nature of the proceedings and the legal strategies of the parties ought to be remedied by interim review. However, under the Internal Rules, only the Prosecution is authorized to challenge these types of errors. The practice in other international criminal courts with respect to the indictment and procedures for confirming charges sheds light on the significance of the Defense’s inability to question the contents of the Closing Order at the ECCC. At the ICC, the charges against the accused must be confirmed in a hearing before he or she can be brought to trial. However, prior to the confirmation hearing, the Defense must receive a copy of the document containing the charges and information regarding the evidence to be used in support of those charges. At the confirmation hearing, the Defense may: (a) object to the charges, (b) challenge the evidence presented by the Prosecutor, and (c) present new evidence. At the ICTY and ICTR, the Defense may challenge the form or substance of the indictment via interlocutory appeal.
Because substantive challenges to a Closing Order may only be initiated by the Prosecution, the Defense is in a disadvantaged position. Further, not only is the Defense’s access to judicial remedies limited in relation to the Prosecution, but the Defense’s ability to prepare an effective defense may also be compromised without the power of appeal. The consensus in criminal proceedings is that where the indictment is found to be vague or lacking in specificity, the Defense’s ability to adequately prepare his case may be handicapped. Where access to a remedy in such a case hinges on the discretion of the opposing party, the principle of equality of arms cannot be guaranteed.
IV. How might the ECCC correct these concerns?
As discussed above, the ECCC’s approach to interlocutory review may be compromise the legitimacy and fairness of the proceedings. However, if the ECCC were to shift from its current position to a more intermediate one, some of these concerns, such as the equity between the Prosecution and the Defense, could be addressed and possibly eliminated. This section will explore three ways in which the ECCC can achieve a more intermediate approach to interlocutory appeal: the adoption of discretionary review, the adoption of the fast-track mechanism, and the use of broad statutory interpretation.
(a) Adopt a provision for discretionary review
Absent from the ECCC rules, but available at all international courts is a mechanism for discretionary interlocutory appeals — appeals that are granted based on the judgment, or opinion, of the chamber. The ICC and the Ad Hoc Tribunals use similar language to grant discretionary power to the Appellate Chamber to review decisions involving issues that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of Chamber, an immediate resolution may materially advance the proceedings may be accepted for appeal. The SCSL employs two separate standards, depending upon whether the issue arises from a pre-trial decision (preliminary) or a trial decision (non-preliminary). Preliminary issues that “significantly affect the fair and expeditious conduct of the proceedings or the outcome of a trial” may be referred directly to the Appeals Chamber for adjudication. Non-preliminary decisions, “in exceptional circumstances and to avoid irreparable prejudice to a party,” may be subject to interlocutory appeal. A number of critical issues have been certified for appeal via these provisions, including the statutory rights guaranteed to the accused and the admission of evidence.
The ECCC would similarly benefit from the addition of discretionary review. Discretionary review would give the ECCC greater flexibility to address many of the fairness concerns discussed in the previous section.
(b) Adopt a fast-track mechanism
The ECCC could also adopt the fast-track mechanism of the SCSL, which allows the Trial Chamber (TC) to refer an issue directly to the AC and receive “authoritative interpretations” on crucial preliminary matters without first ruling on the issue. Because referral precedes any judgment on the issue, the parties do not have to present these issues at the TC, only to present them again at the AC. As a result, the fast-track mechanism is believed by the SCSL to “enhance rather than undermine the basic right to expeditious justice.”
(c) Employ Flexible Statutory Interpretation
Alternatively, or in addition to the above methods, the ECCC could broadly interpret its Internal Rules on appellate review. The ICTY and the SCSL have relied on broad interpretations of their interlocutory review rules when presented with an issue of fundamental fairness. For instance, the ICTY’s first request for interlocutory review in Prosecutor v. Tadic, challenged the very foundation and legality of the court. Typically, these matters would not involve questions of jurisdiction — subject matter, personal, or otherwise. The court, nonetheless, approved the request under a rule that permitted interim review of jurisdictional issues. This broad interpretation of the notion of jurisdiction gave the court the flexibility to settle with finality a fundamental matter. Though the ICTY has since used a stricter interpretation of jurisdiction, the initial flexible interpretation was critical for establishing the legitimacy and the proper functioning of the court.
The proceedings at the ECCC could similarly benefit from flexible statutory interpretation where it is necessary to uphold the fairness of the proceedings. This is particularly true where investigative action is concerned. As indicated above, the Defense has limited rights during the investigation phase and may only appeal certain OCIJ orders. The disadvantage the Defense experiences as a consequence could be worsened by the PTC’s intention to interpret the term “investigative action” strictly. However, if the term were broadened to refer to not just the action itself (eg. request to interview a witness), but also to the manner in which the action is performed (eg. request to interview a witness and pursue a particular line of questioning), then the ECCC could move closer to satisfying the principle of the equality of arms.
V. Conclusion
From a Defense perspective, the ECCC’s current interlocutory appeal regime is restrictive and inflexible. Because the restrictiveness of the regime limits the ECCC’s ability to adequately respond to the needs of the Defense and because the regime is internally inconsistent, the fairness and legitimacy of the proceedings may be in jeopardy. However, with the adoption of discretionary review or the fast-track mechanism or the use of more permissive statutory interpretation, the ECCC can better address issues of fairness.
Columbia Law School — New York , N.Y. , J.D. Candidate 2011
Summer 2009 Legal Associate, Documentation Center of Cambodia
The legitimacy of proceedings at the Extraordinary Chambers in the Courts of Cambodia (ECCC) will be judged, in large part, on its ability to ensure procedural justice, not just for the victims of the Khmer Rouge, but for the accused as well. The ability of the parties to a proceeding to request an interlocutory appeal is an important component of procedural fairness. An interlocutory appeal, also referred to as interim review, is an appeal of a non-final decision while the proceedings are still in progress. In international criminal proceedings, interlocutory appeals operate as a procedural check where the rights of a party to the proceedings are at risk of being violated by a decision of the court. Though this remedy is universally deemed exceptional in criminal proceedings, many international criminal courts have permitted the parties to request interim review of a wide range of issues.
In establishing rules for interlocutory review, or an interim review regime, international and hybrid national/international courts must, not only, make accommodations for the unique challenges present in international criminal proceedings, but they must also balance competing interests, namely the Defense’s right to a fair trial and right to an expeditious trial. However, the ECCC’s interim appeal regime provides insufficient protection for the rights of the Defense and is inconsistent with international practice. This article examines a number of these concerns and explores some corrective measures the ECCC could adopt.
I. The ECCC’s should not have a restrictive interim appeal regime and a restrictive final appeal regime
At the ECCC, the Defense only has limited rights to appeal interim decisions. Defendants at the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, collectively known as the “Ad Hoc Tribunals”), and the Special Court for Sierra Leone (SCSL) have greater rights of appeal. The ECCC’s restrictive regime is not well suited for the its similarly restrictive regime for appellate review of final decisions. To ensure that all decisions involving issues of fairness can be reviewed, without unduly delaying proceedings, a permissive interim appeal regime should be coupled with a restrictive final appeal regime, or vice versa.
Before the amendments to the ECCC Internal Rules in 2008, the accused could request an appeal at judgment of “any issues of fact and law, against decisions of the Trial Chamber.” However, after these amendments, this broad right to appeal was considerably restricted. Currently, the Supreme Court Chamber will only hear final appeals on the following grounds: “a) an error on a question of law invalidating the judgment or decision; or b) an error of fact which has occasioned a miscarriage of justice.” Additionally, the amended rules call for higher standards of admissibility for appeals at the final judgment stage. No longer can the accused submit a brief request, containing the reasons for the appeal; the new provisions require that the accused either specify the alleged error of law and demonstrate how it invalidates the decision or specify the alleged error of fact and demonstrate how it occasioned a miscarriage of justice. Each ground of appeal must be supported with arguments and authorities.
This move toward a restrictive approach to appeals at the final judgment stage should have triggered a more permissive approach to interim appellate review for the Defense. Where there is no right during the trial or after the trial to request a review of a matter involving the fundamental rights of the accused, the legitimacy of the entire proceedings may be questioned. Matters concerning the Defense’s right to an expeditious trial and the interference with the Defense’s ability to develop a defense strategy, among others, may not be afforded appellate review at any stage of the proceedings.
II. The ECCC’s overall appellate review regime is inconsistent with international and national criminal practice
The ECCC limits the Defense’s right to appeal interim decisions, but does not limit the Prosecution’s rights. Neither the ICTY, the ICTR, the SCSL, nor the International Criminal Court (ICC) limit the appeal rights of the accused with the respect to those granted the Prosecution. Further, none of these other courts uses a regime for appellate review of final judgments that is as restrictive and inflexible as the one in place at the ECCC. Instead they appear to approach appellate review holistically, by permitting appellate review of fundamental issues at the final judgment stage where it is unavailable at the interlocutory stage.
For example, the ICC, which has the most restrictive interim review regime, appears, at least facially, to take the most permissive approach to appeals at the final judgment stage. Its regime for final appellate review permits appeals of the following: (i) procedural error, (ii) error of fact, (iii) error of law, or (iv) any other ground that affects the fairness or reliability of the proceedings or decision. A requirement that the error of law invalidate the decision and that the error of fact occasion a miscarriage of justice might be considered a heightened standard for errors of law and fact. Unlike the ECCC, the ICC does not require this heightened standard. Moreover, the ICC permits appellate review of procedural errors and any other ground affecting the proceedings fairness and reliability, a term that can be interpreted quite broadly.
The other courts discussed in this article also have more permissive final appellate regimes. The SCSL, for instance, permits the review of procedural errors, in addition to the grounds permitted under the ECCC. Though the Ad Hoc Tribunals also require that the error of law invalidate the decision and that the error of fact occasion a miscarriage of justice, they differ from the ECCC is one important way. The ICTY and ICTR Appeals Chambers (AC) are allowed to vary the grounds for final appeals, upon a good showing. This not only gives the court some flexibility, but it also appears to permit the appeal of certain issues at the final judgment stage that were not appealable during the trial.
Appellate review at the ECCC is also inconsistent with the practice in the French system. French courts “look at the fairness of procedures globally, allowing the absence of one guarantee to be counterbalanced by the existence of another.” Though, like the ECCC, the French criminal system restricts the accused’s right to interim review, what distinguishes the French civil system from the ECCC is that both the Prosecution and the Defense can initiate a full review of the facts and law of the case at the final judgment stage. This would be like getting a new trial. Issues that could not be reviewed during the first trial, will be reviewed at the second. This counter-balancing is absent from the ECCC’s appellate regime.
III. The ECCC’s restrictive approach to interim review interferes with the defense’s right to a fair trial
Historically, efforts by defense lawyers to provide adequate representation for their clients in international criminal proceedings have been obstructed by a lack of human and economic resources compared to those afforded the prosecution. Hence, at the “heart” of modern international criminal justice is the principle of equality of arms, a component of the right to a fair trial. The principle implies that “each party must be afforded a reasonable opportunity to present his case — including his evidence — under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.” The following subsections will explore two instances in the ECCC’s pre-trial proceedings where the Defense’s restricted access the interim appellate review places it at a disadvantage in relation to the Prosecution.
(a) The Defense’s minor role in fact-finding coupled with its limited right to appeal investigative actions places it at a substantial disadvantage vis-à-vis the Prosecution
At the ECCC, the Defense is not permitted to conducted its own investigation; it may only request that the Office of the Co-Investigating Judges (OCIJ) undertake certain investigative actions or pursue additional expert reports on its behalf. Though the OCIJ is not required to pursue these requests, the Defense is given a right to appeal the refusal. However the Defense has no right to challenge the manner in which the request, if accepted, is satisfied.
According to the ECCC Internal Rules, the OCIJ may delegate investigative tasks to the Judicial Police or the ECCC Investigators. The Judicial Police operates under the sole instructions of the Co-Prosecutors during the preliminary investigation stage, the OCIJ during the judicial investigation stage, and the Pre-Trial Chamber (PTC) during supplementary investigations. The Judicial Police are not permitted to seek or take orders from any other person in carrying out their investigative functions. Nor are the Judicial Police permitted to question the accused. Similarly, the ECCC Investigators are to conduct their investigations in accordance with the requests of the Co-Prosecutors or the OCIJ, depending upon the stage of the proceedings, and are not permitted to question the accused.
Should the Defense request that the OCIJ pursue a particular investigative action and should the OCIJ agree to pursue that lead, there is no guarantee that the lead will be pursued in a manner most helpful to the accused. Moreover, there is no remedy to through which the Defense can seek an expanded or altered focus for the investigative action. Without a more expansive right to interim appellate review, the Defense’s ability to present its case is compromised.
The ability of the Defense to influence the investigation or the evidence upon which the trial will be based is greater at international courts. At the ICC, the Defense is also not involved in pre-trial investigations. Nonetheless, it may fully challenge the evidence and provide its own evidence during the confirmation hearing. It may also request approval to appeal any pre-trial decision that “would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” Similarly, the Ad Hoc Tribunals do not permit the Defense to participate in the investigation; however, the Defense may request an interlocutory appeal to challenge the investigative action.
Notably, the lack of control over the manner in which an investigation is conducted is a common criticism of the French criminal system, upon which Cambodian Law and Internal Rules are based. Though the investigating police are operating under the judge’s orders, even the judge “cannot ensure that such orders are fully complied with.” The ECCC’s adoption of this French law feature without adapting it to address the investigative challenges of international proceedings and the heightened necessity for equality of arms in international criminal proceedings is problematic.
(b) The Defense’s inability to independently challenge the substance of the Closing Order places it at a disadvantage vis-à-vis the Prosecution and is inconsistent with international criminal practice
At the ECCC, the Closing Order is functionally equivalent to an indictment. The Closing Order contains the material facts of the indictment, their legal characterization, the relevant criminal provisions, and the nature of the accused’s criminal responsibility. While the Prosecution is permitted to appeal the Closing Order issued by the OCIJ, the Defense cannot. This places the Defense on unequal footing with the Prosecution and hampers the Defense’s ability to adequately prepare its case.
Errors in the Closing Order with the potential to vastly alter the nature of the proceedings and the legal strategies of the parties ought to be remedied by interim review. However, under the Internal Rules, only the Prosecution is authorized to challenge these types of errors. The practice in other international criminal courts with respect to the indictment and procedures for confirming charges sheds light on the significance of the Defense’s inability to question the contents of the Closing Order at the ECCC. At the ICC, the charges against the accused must be confirmed in a hearing before he or she can be brought to trial. However, prior to the confirmation hearing, the Defense must receive a copy of the document containing the charges and information regarding the evidence to be used in support of those charges. At the confirmation hearing, the Defense may: (a) object to the charges, (b) challenge the evidence presented by the Prosecutor, and (c) present new evidence. At the ICTY and ICTR, the Defense may challenge the form or substance of the indictment via interlocutory appeal.
Because substantive challenges to a Closing Order may only be initiated by the Prosecution, the Defense is in a disadvantaged position. Further, not only is the Defense’s access to judicial remedies limited in relation to the Prosecution, but the Defense’s ability to prepare an effective defense may also be compromised without the power of appeal. The consensus in criminal proceedings is that where the indictment is found to be vague or lacking in specificity, the Defense’s ability to adequately prepare his case may be handicapped. Where access to a remedy in such a case hinges on the discretion of the opposing party, the principle of equality of arms cannot be guaranteed.
IV. How might the ECCC correct these concerns?
As discussed above, the ECCC’s approach to interlocutory review may be compromise the legitimacy and fairness of the proceedings. However, if the ECCC were to shift from its current position to a more intermediate one, some of these concerns, such as the equity between the Prosecution and the Defense, could be addressed and possibly eliminated. This section will explore three ways in which the ECCC can achieve a more intermediate approach to interlocutory appeal: the adoption of discretionary review, the adoption of the fast-track mechanism, and the use of broad statutory interpretation.
(a) Adopt a provision for discretionary review
Absent from the ECCC rules, but available at all international courts is a mechanism for discretionary interlocutory appeals — appeals that are granted based on the judgment, or opinion, of the chamber. The ICC and the Ad Hoc Tribunals use similar language to grant discretionary power to the Appellate Chamber to review decisions involving issues that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of Chamber, an immediate resolution may materially advance the proceedings may be accepted for appeal. The SCSL employs two separate standards, depending upon whether the issue arises from a pre-trial decision (preliminary) or a trial decision (non-preliminary). Preliminary issues that “significantly affect the fair and expeditious conduct of the proceedings or the outcome of a trial” may be referred directly to the Appeals Chamber for adjudication. Non-preliminary decisions, “in exceptional circumstances and to avoid irreparable prejudice to a party,” may be subject to interlocutory appeal. A number of critical issues have been certified for appeal via these provisions, including the statutory rights guaranteed to the accused and the admission of evidence.
The ECCC would similarly benefit from the addition of discretionary review. Discretionary review would give the ECCC greater flexibility to address many of the fairness concerns discussed in the previous section.
(b) Adopt a fast-track mechanism
The ECCC could also adopt the fast-track mechanism of the SCSL, which allows the Trial Chamber (TC) to refer an issue directly to the AC and receive “authoritative interpretations” on crucial preliminary matters without first ruling on the issue. Because referral precedes any judgment on the issue, the parties do not have to present these issues at the TC, only to present them again at the AC. As a result, the fast-track mechanism is believed by the SCSL to “enhance rather than undermine the basic right to expeditious justice.”
(c) Employ Flexible Statutory Interpretation
Alternatively, or in addition to the above methods, the ECCC could broadly interpret its Internal Rules on appellate review. The ICTY and the SCSL have relied on broad interpretations of their interlocutory review rules when presented with an issue of fundamental fairness. For instance, the ICTY’s first request for interlocutory review in Prosecutor v. Tadic, challenged the very foundation and legality of the court. Typically, these matters would not involve questions of jurisdiction — subject matter, personal, or otherwise. The court, nonetheless, approved the request under a rule that permitted interim review of jurisdictional issues. This broad interpretation of the notion of jurisdiction gave the court the flexibility to settle with finality a fundamental matter. Though the ICTY has since used a stricter interpretation of jurisdiction, the initial flexible interpretation was critical for establishing the legitimacy and the proper functioning of the court.
The proceedings at the ECCC could similarly benefit from flexible statutory interpretation where it is necessary to uphold the fairness of the proceedings. This is particularly true where investigative action is concerned. As indicated above, the Defense has limited rights during the investigation phase and may only appeal certain OCIJ orders. The disadvantage the Defense experiences as a consequence could be worsened by the PTC’s intention to interpret the term “investigative action” strictly. However, if the term were broadened to refer to not just the action itself (eg. request to interview a witness), but also to the manner in which the action is performed (eg. request to interview a witness and pursue a particular line of questioning), then the ECCC could move closer to satisfying the principle of the equality of arms.
V. Conclusion
From a Defense perspective, the ECCC’s current interlocutory appeal regime is restrictive and inflexible. Because the restrictiveness of the regime limits the ECCC’s ability to adequately respond to the needs of the Defense and because the regime is internally inconsistent, the fairness and legitimacy of the proceedings may be in jeopardy. However, with the adoption of discretionary review or the fast-track mechanism or the use of more permissive statutory interpretation, the ECCC can better address issues of fairness.
Wednesday, October 21, 2009
Students confront Kingdom’s tragic past
Helping young Cambodians better understand the darkest stage and political problems of their country’s history.
On October 9, the Documentation Center of Cambodia (DC-Cam) distributed textbooks about the Khmer Rouge to high school students in the Samrong district of the Takeo province. The book, A History of Democratic Kampuchea, was written by Khamboly Dy of DC-Cam in partnership with the Cambodian Ministry of Education.According to one estimate by the Cambodian Ministry of Education, about 85 percent of educated people were killed during that time.Khamboly Dy compared Cambodian society after the fall of the Khmer Rouge to a broken glass; a shattered society which was very difficult to reconstruct. Khamboly Dy further remarked that none of the students in the audience were alive during the period of Democratic Kampuchea, but that many of their parents and grandparents suffered during that time. He argued that there was even a greater imperative for students to learn about the history of the Khmer Rouge. The younger generation, he explained, could draw on this knowledge to build a more peaceful society.
Youk Chhang, director of the Documentation Centre of Cambodia, said that the institute has planned to distribute more than a million Khmer Rouge history books to the students in 1,321 schools over the country, and that over the course of the year has distributed only about 400,000 books because of an insufficient budget for printing the books.
“We are going to distribute around 700,000 Khmer Rouge history books next year to the other students who have not got the book yet, and I think at least they have one Khmer Rough history book in their hand,” he said.
He added that the centre doesn’t force them to learn, but that it is their obligation to be informed about the era. As Khmer children, they have to learn about their own history in order to build the country. Youk Chhang said, “If we don’t learn our history, it is very difficult to build our country in the future”.
“For the first time, everyone thinks that Khmer Rouge is a political problem, but actually it is not, and I think the students are the effective agents of change for our country by changing their lives to be educators by learning the Khmer history,” Youk Chhang said.
Tan Ratana, 20, a 12th-grade student at Russey Keo High School, said that her parents and grandmother used to tell her about the Khmer Rouge regime.
“Even though I was not yet born at that time, I believe that Cambodia suffered the brutality of the Pol Pot regime in our country, but as I read, watched and listened to the old people speak about that convincingly, I became horrified and surprised. I believed it had those adverse effects, with a turn of events that was cruel and unbelievable to the extent of Khmer people daring to kill each other like that,” she said.
“I have never learned about the Khmer Rouge history, but I am happy if I can learn about it because I am afraid of foreign youths or students asking me, and it will be shameful if I cannot answer their questions about the Khmer Rouge,” she said.
Luch Bunchhoeun, 28, a 12 th-grade student at the Prah Soramarith Buddhist school, said he has nearly finished reading the Khmer Rouge history book he recieved from DC-Cam.
“Before, I did not read it and I believed only 50 percent of it to be true, but now I do believe it entirely because what the elder witnesses of the regime have said has proved to be evidence,” he said.
He added that what they did at that time was very wrong and cruel – and that as human beings they should not kill someone.
“Younger generations have to learn about Khmer Rouge history, but the trainers have to find the ways of teaching them in order to avoid the students following the Khmer Rouge leaders’ step,” Luch Bunchhoeun said.
Ros Ravuth, a teacher at Chaktomok High School, said that he supports and encourages the Cambodian students learning about Khmer Rouge history.
“The Khmer Rouge history is not only intended for the knowledge of older people, but also for Khmer youths. As they are young and impressionable, it is critical that they know about Khmer history,” he said.
He continued that it can be of significance to the students’ feelings, as many are not aware about the atrocities and bloodshed that the nation committed within its own borders by killing intellectuals in religious, scientific and artistic communities.
“The aim of the education is not to turn the students against the leaders of the Khmer Rouge regime in order to avenge their forefathers,” he added.
“We simply want them to know and review what happened with their parents or relatives at that time.”
Ou Eng of the Ministry of Education said that students and youths should take the effort to read as many books as they can about the Khmer Rouge history.
“Most young people, in this age of technology and globalisation, don’t believe what happened during the Khmer Rouge regime, and they laughed when they learned that people of that era did not have anything to eat,” he said.
“I think it is very good for all young students to learn to know their country’s history in order for them to be mindful of what they have to avoid and which successes or merits they have to follow."
Dy Khamboly, the author of the Khmer Rouge history book, regards the text as a document to be used by the next generation to find the solutions to prevent a similar apocalypse from again engulfing the country.
“I think that they will not become vindictive after absorbing lessons from the book, but they can find solutions for finding peace, harmony and reconciliation,” he said.
“We introduce the facts about the Khmer Rouge – we don’t use the interpretation, we don’t use propaganda, we use facts. And we try to balance, to make the book neutral, not to take sides,” he added.
“That is very important, to know exactly what happened in Cambodia from 1975 to 1979; the real events – not the propaganda, not the hatred – because from now on we need to focus on peace and reconciliation, and justice. Not on hatred or any propaganda.”
On October 9, the Documentation Center of Cambodia (DC-Cam) distributed textbooks about the Khmer Rouge to high school students in the Samrong district of the Takeo province. The book, A History of Democratic Kampuchea, was written by Khamboly Dy of DC-Cam in partnership with the Cambodian Ministry of Education.According to one estimate by the Cambodian Ministry of Education, about 85 percent of educated people were killed during that time.Khamboly Dy compared Cambodian society after the fall of the Khmer Rouge to a broken glass; a shattered society which was very difficult to reconstruct. Khamboly Dy further remarked that none of the students in the audience were alive during the period of Democratic Kampuchea, but that many of their parents and grandparents suffered during that time. He argued that there was even a greater imperative for students to learn about the history of the Khmer Rouge. The younger generation, he explained, could draw on this knowledge to build a more peaceful society.
Youk Chhang, director of the Documentation Centre of Cambodia, said that the institute has planned to distribute more than a million Khmer Rouge history books to the students in 1,321 schools over the country, and that over the course of the year has distributed only about 400,000 books because of an insufficient budget for printing the books.
“We are going to distribute around 700,000 Khmer Rouge history books next year to the other students who have not got the book yet, and I think at least they have one Khmer Rough history book in their hand,” he said.
He added that the centre doesn’t force them to learn, but that it is their obligation to be informed about the era. As Khmer children, they have to learn about their own history in order to build the country. Youk Chhang said, “If we don’t learn our history, it is very difficult to build our country in the future”.
“For the first time, everyone thinks that Khmer Rouge is a political problem, but actually it is not, and I think the students are the effective agents of change for our country by changing their lives to be educators by learning the Khmer history,” Youk Chhang said.
Tan Ratana, 20, a 12th-grade student at Russey Keo High School, said that her parents and grandmother used to tell her about the Khmer Rouge regime.
“Even though I was not yet born at that time, I believe that Cambodia suffered the brutality of the Pol Pot regime in our country, but as I read, watched and listened to the old people speak about that convincingly, I became horrified and surprised. I believed it had those adverse effects, with a turn of events that was cruel and unbelievable to the extent of Khmer people daring to kill each other like that,” she said.
“I have never learned about the Khmer Rouge history, but I am happy if I can learn about it because I am afraid of foreign youths or students asking me, and it will be shameful if I cannot answer their questions about the Khmer Rouge,” she said.
Luch Bunchhoeun, 28, a 12 th-grade student at the Prah Soramarith Buddhist school, said he has nearly finished reading the Khmer Rouge history book he recieved from DC-Cam.
“Before, I did not read it and I believed only 50 percent of it to be true, but now I do believe it entirely because what the elder witnesses of the regime have said has proved to be evidence,” he said.
He added that what they did at that time was very wrong and cruel – and that as human beings they should not kill someone.
“Younger generations have to learn about Khmer Rouge history, but the trainers have to find the ways of teaching them in order to avoid the students following the Khmer Rouge leaders’ step,” Luch Bunchhoeun said.
Ros Ravuth, a teacher at Chaktomok High School, said that he supports and encourages the Cambodian students learning about Khmer Rouge history.
“The Khmer Rouge history is not only intended for the knowledge of older people, but also for Khmer youths. As they are young and impressionable, it is critical that they know about Khmer history,” he said.
He continued that it can be of significance to the students’ feelings, as many are not aware about the atrocities and bloodshed that the nation committed within its own borders by killing intellectuals in religious, scientific and artistic communities.
“The aim of the education is not to turn the students against the leaders of the Khmer Rouge regime in order to avenge their forefathers,” he added.
“We simply want them to know and review what happened with their parents or relatives at that time.”
Ou Eng of the Ministry of Education said that students and youths should take the effort to read as many books as they can about the Khmer Rouge history.
“Most young people, in this age of technology and globalisation, don’t believe what happened during the Khmer Rouge regime, and they laughed when they learned that people of that era did not have anything to eat,” he said.
“I think it is very good for all young students to learn to know their country’s history in order for them to be mindful of what they have to avoid and which successes or merits they have to follow."
Dy Khamboly, the author of the Khmer Rouge history book, regards the text as a document to be used by the next generation to find the solutions to prevent a similar apocalypse from again engulfing the country.
“I think that they will not become vindictive after absorbing lessons from the book, but they can find solutions for finding peace, harmony and reconciliation,” he said.
“We introduce the facts about the Khmer Rouge – we don’t use the interpretation, we don’t use propaganda, we use facts. And we try to balance, to make the book neutral, not to take sides,” he added.
“That is very important, to know exactly what happened in Cambodia from 1975 to 1979; the real events – not the propaganda, not the hatred – because from now on we need to focus on peace and reconciliation, and justice. Not on hatred or any propaganda.”
“Turning a river of blood into a river of reconciliation”: Cambodia’s catastrophe
Dr. Annie Stopford
“After 25 years people are still asking the same questions...we deserve justice as human beings. Victims are just like a glass that has dropped on the floor and broken, and you try to glue it back together. That’s what we are, broken people living in a broken society”. Youk Chhang, Director of the Documentation Centre of Cambodia
In August this year I returned to Cambodia for a brief visit after a gap of 28 years. I had no particular plans when I set off, but felt a need to honour a promise I’d made to myself many years ago that one day I would return. It was intensely emotional to be back in Phnom Penh after so long, with an odd feeling of things being so different, and yet still the same. There is freedom of movement, the streets are alive and colourful, and the tense, paranoid atmosphere I experienced in 1980 is gone, but the distress is still palpable. As Christina Carey from the University of Southern California writes; “Even though thirty years have gone by, the Khmer Rouge and the regimes following it have left Cambodia in a state of chronic pain.” (2009). As it happened, my visit coincided with the trial of Kaing Guek Eav (“Duch”), the former superintendent of S21 (Tuol Sleng) prison where over 15,000 men, women and children were tortured and executed during the four years of Khmer Rouge control. Any thoughts of heading off to Siem Riep to see Angkor Wat were soon abandoned, and I spent the first day of my week in Phnom Penh attending the Extraordinary Chambers of the Courts of Cambodia (ECCC).
It took ten years of wrangling between the Cambodian government and the United Nations to set up this special international court for the specific purpose of prosecuting some senior members of the Khmer Rouge leadership, and the atmosphere surrounding the court is highly charged. There have been accusations of corruption amongst Cambodian ECCC officials, disagreements between the national and international co-prosecutors about whether to prosecute additional Khmer Rouge leaders, and dire warnings from Prime Minister Hun Sen that any further prosecutions would run the risk of plunging Cambodia into civil war. There are many previous Khmer Rouge cadres holding powerful positions in the current Cambodian government, and the blurry line between perpetrator and victim (many Khmer Rouge cadres were children when they were recruited) is a major political and psychological challenge for Cambodia . The proceedings of the ECCC are carefully monitored by numerous interested parties, including national and international journalists, the Cambodian Documentation Centre (DC-Cam), and the Centre for International Human Rights at Northwestern University School of Law.
The day I attended the tribunal there were a few other foreigners, and hundreds of rural Cambodians who had been bussed in by the government due to a concern that 75% of the Cambodian population are not aware of the ECCC. Attending the ECCC tribunal so early on in my visit was like diving straight into Cambodian and international politics, and added to the surreal feeling of past and present converging. My first visit to Cambodia in 1980 was very soon after the Vietnamese invasion ended the Khmer Rouge reign of terror, and Cambodia was in the grip of catastrophic trauma. During the previous 4 years an estimated 21% of the population (close to 2 million people) died as a result of starvation, illness, overwork, torture and execution as “Angkar”, or the Organization, set out to create their Marxist-Leninist- Maoist inspired utopian vision of the ideal agrarian based communist society. When I arrived in Cambodia I could speak only a few words of Khmer, and minimal French, and the Khmer people I met could speak almost no English, but through words, gestures and drawings the people I encountered on my journey from the border of Thailand to Sisophon, Battambang and Phnom Penh managed to convey some of the immeasurable suffering, terror, loss and trauma of the previous 4 years.
The extreme ideologically driven violence, paranoia and cruelty of the Khmer Rouge almost defy imagination. Under the Khmer Rouge cities were emptied, money, wages and private property were abolished, universities, schools, places of worship, cultural institutions, and government buildings destroyed, religious practices and education prohibited, families forcibly separated, and “illegal” sexual activity punished with execution. Everyone lived in constant fear. Children were turned into informers against their parents, uneducated teenagers sent to run hospitals, intellectuals, doctors, scientists and artists killed, and all material goods associated with the “bourgeois” west, such as televisions, books and cars, destroyed. In their attempts to turn Cambodia almost overnight into a “pure” communist society the Khmer Rouge leaders destroyed almost every dimension of Cambodian society. The word used by the Khmer Rouge to describe the action that should be taken against perceived enemies of their revolution was “smashed”, and that is exactly what they did to the country.
As John Le Carre writes in his introduction to a book written by the only westerner to survive imprisonment by the Khmer Rouge, a French man named Francois Bizot; “There is pain that is perceived, and there is pain that is endured, and they are two different worlds, inhabited by creatures of two different races...In the scale of human suffering I did not even qualify for a mention” (200, pg viii). Precisely. Nevertheless, to be in Cambodia in the immediate aftermath of one of the most extreme and brutal regimes in history was profoundly impactful, perhaps heightened by the fact that I was in quite challenging conditions myself. Apart from occasional conversations about practical matters such as food, and insistent questioning by various authorities as to why I was in Cambodia , the only conversations and interactions I had for two months were about what happened under the Khmer Rouge, and I often found myself numb from the extreme horror. The married couple caretakers of the Phnom Penh house where I lived, for example, had had 2 babies during the Khmer Rouge years, both of whose skulls were smashed by young Khmer Rouge cadres in order to ensure that their mother kept working in the rice fields.
I learned in the most immediate and visceral way about the need we humans have to tell our stories, to be heard and recognized, and to have what Martin Buber describes as the “I – Thou” encounter. I have no doubt that this experience was formative in my eventually becoming a psychotherapist. I tried desperately not to dissociate, but of course I did, culminating in nearly fainting when I was taken to see Tuol Sleng ( camp S 21) a few days before leaving Cambodia . Blood stains were still visible on the floor, and the torture instruments displayed, along with thousands of skulls, and “confessions” and photos of the distressingly blank faces of the victims, including 2 young men from Australia and New Zealand who had been “captured” while sailing their yacht off the Cambodian coast.
When I Ieft Cambodia in late January 1981 I wanted to try to stay connected to the country, perhaps through becoming involved in some way with Cambodian refugees in Australia, but instead I became a drug and alcohol counsellor in a women’s refuge in King’s Cross. For many years I gave little conscious thought to what had happened in Cambodia . I was in survival mode myself to some degree, and the dissociation from the unbearable horror of genocide that had begun while I was in Cambodia continued when I returned to Australia . I wanted to believe that the Khmer Rouge’s defeat by the Vietnamese marked a clear cut end to the extreme suffering of the Cambodian people, and the end of the Khmer Rouge, so it came as quite a shock when I read “The Lost Executioner” by Nic Dunlop (2005) after my recent trip and discovered that in fact the Khmer Rouge (backed by the U.S., Thailand and China) remained a considerable threat to Cambodia’s peace and security until the early 1990’s.
As psychotherapists we are interested in the unconscious and dissociative processes that shape lives, and in hindsight it’s easy to see the connection between what I had experienced in Cambodia , and the fact that so soon after my return to Australia I found myself working with drug and alcohol dependent sex workers with their own histories of trauma. I did not have the maturity or psychological capacity to continue what John Pilger describes as the “journey into the dark, suffering heart of Cambodia ” (2005), so I unconsciously found a way to work with suffering that was more “bearable”. On this last visit I made a conscious decision to try to stay as open and receptive as I could to the past and present pain of Cambodia, so in the days after I attended the ECCC, and upon return to Australia, I immersed myself in reports about the trial proceedings, and in literature about the Khmer Rouge, including many accounts by survivors. I have the same response every time I read about the Khmer Rouge as I had when I visited Tuol Sleng in 1980; nausea, dizziness, and a sense of overwhelming horror that leaves me feeling hollow, despairing and drained for days. Many people who research and write about the Holocaust describe similar responses.
Besides attending the ECCC, I also visited several organizations in Phnom Penh that are actively involved in documentation, healing, reconciliation and rescue work. The first on my list was the Cambodian Documentation Centre (DC-Cam), whose motto is “turning a river of blood into a river of reconciliation”. This centre was founded after the US Congress passed the Cambodian Genocide Justice Act in April 1994 and established the Office of Cambodian Genocide Investigations. The Office announced grants to Yale University in 1995 and 1997, enabling Yale’s Cambodian Genocide Program to conduct research on the Khmer Rouge regime, and in 1995 the CGP founded DC-Cam as a field office in Phnom Penh , under the leadership of Youk Chhang, a survivor of Cambodia ’s “killing fields”. In 1997 DC-Cam became fully independent, with a wide variety of donors. The centre concentrates on two major objectives, the first being to record and preserve the history of the Khmer Rouge regime for future generations (memory), and the second to compile and organize information that can serve as potential evidence in any legal proceedings against the Khmer Rouge (justice).
The DC-Cam website includes the following poignant and powerful statement about the destruction and healing of Cambodia :
“DC-Cam's quest for memory and justice has more to do with the future than with the past. It is about the struggle for truth in the face of an overwhelming power that virtually destroyed our society, a power that continues in more subtle ways to threaten our aspirations for a peaceful future. The violence of that power shattered Cambodian society and scattered the Cambodian people across the planet in a terrible diaspora. But no matter how far or near to the homeland, and whether they are survivors or the new generation born after the overthrow of Pol Pot, all Cambodians still suffer from a profound sense of dislocation. This dislocation is rooted in a loss deeper than material deprivation or personal bereavement. It is a loss that can never be recovered, and thus full healing of the wounds of genocide will require that something new be built to take the place of that which has been lost. By reconstructing a historical narrative of what happened to Cambodia, and by striving for justice where that is an appropriate remedy, we aim to lay a foundation upon which all Cambodians can find firm footing in moving toward a better future. Reconciliation in Cambodia will happen one heart at a time.”
When I met with Youk Chhang he said that he feels that unlocking and expressing emotion is the most important task for Cambodia , through theatre, art, Buddhist ceremonies, and education. When at least 40% of the Cambodian population suffers from the legacy of the thirty years of war and the Khmer Rouge genocide, individual therapy is obviously not the answer for the vast majority, and there are numerous individuals, organizations and agencies (including many Australians) involved in trying to find ways to improve the material, emotional and spiritual dimensions of Cambodians’ lives that do not necessarily involve one to one therapeutic work with the very small number of Cambodian psychologists and psychiatrists.
In fact, according to the executive director of the Transcultural Psychosocial Organization (TPO), Dr Chhim Sotheara, (who also uses the word “broken” to describe Cambodia), many Cambodians’ symptoms do not fit the western medical model of PTSD. Thus, although he is a psychiatrist working with enormous numbers of people suffering from what most western psychotherapists would describe as trauma, he prefers the term “psychosocial distress” as a signifier for a combination of conditions including poverty, alcoholism, domestic and sexual violence, psychosis, paranoia, anxiety, depression and fear. The day before I met with Chhim Sotheara at the TPO he had appeared as an expert witness for the ECCC, and his testimony about the massive mental health problems associated with the Khmer Rouge genocide, and the importance of the ECCC prosecutions as “symbolic justice”, was widely quoted in the national and international press.
In our meeting Sotheara described how during his testimony at the ECCC, the defendant Duch (who has basically admitted his guilt) tried to make eye contact with him many times, and actually bowed to him at one point. When I asked him how he felt about this, Sotheara said that he wanted to avoid eye contact because he felt afraid of Duch, knowing that if he had met him in 1975 Duch would have had him killed as a member of the educated classes. However, in the interests of reconciliation, he did eventually nod and bow to Duch. As in South Africa after the end of apartheid, both perpetrators and victims live cheek by jowl in Cambodia , with the added issue that many perpetrators were also victims themselves, or would have been, if they had not followed orders. Cambodia is still politically volatile, with endemic corruption, and while many Cambodians want to see justice done, they are realistic about the constraints of the current climate.
Attending the ECCC and talking with both Cambodian and non Cambodians about the widespread psychosocial distress raised many important questions about differences and similarities between individual and collective trauma, and about the kinds of healing work required in situations of mass distress, As a psychotherapist working in private practice I love the special space and relationship that is created in one to one long term therapy, but at the same time I often struggle with the reality that many people who need psychological support, education and healing will probably never have access to such a resource. This feeling was of course greatly amplified in Cambodia, and my brief trip exposed me for the first time to some of the debate going on in several overlapping communities (in academic, medical, mental health and NG0 circles, e.g.) about what one Australian academic I met in Phnom Penh rather derisively calls “the trauma industry”, i.e. Western agencies and organizations offering trauma treatments in non Western contexts. Increasingly there is awareness that “trauma is a category largely codified by Western medical and psychological institutions, that “trauma studies” as a field has been grounded in events and processes of Western modernity...and that there has been insufficient exploration not only of how Western theoretical and diagnostic models translate into a “non-Western” context but of how sites of traumatic memory in South East Asia, Africa, and the Middle East (dis)confirm, challenge, or revise dominant Western conceptions of trauma and memory” (Saunders and Aghaie, 2005, p. 16).
I am not familiar enough with the literature about this debate or with the realities of working in the mental health field in Indo China to form a strong opinion on the applicability of Western derived knowledge and methods in Cambodia . However, time spent at ECCC, DC-Cam and TPO, and later on at a French NGO in Phnom Penh for abused, neglected, trafficked and abandoned children (whose Cambodian and Western carers are also traumatized), left me feeling that probably many kinds of psychological support and knowledge are needed in Cambodia. While non Cambodians such as the French director of the aforementioned NGO (who told me she is desperate for her own supportive therapy) might benefit from the kind of one to one therapy we offer in the ANZAP community, if only it were available, what most Cambodian mental health workers want is for their indigenous traditions, practices and resources to be respected and recognised. While they appreciate the support and resources offered by the West, they do not want the all too frequent scenario of Western practitioners assuming that their knowledge and methods are inherently superior. In an interview with Helen Basili after a visit to a mental health clinic in Cambodia, Meng Eang Thai, a Cambodian counsellor at the NSW Service for the treatment and rehabilitation of torture and trauma survivors (STARTTS) says, “I have been arguing with people to acknowledge that Cambodians have had the concept of counselling for a long, long time but most of the Western practitioners have disagreed. ..We have to acknowledge that although the Cambodian idea of counselling is different from the Western tradition, it still exists. It’s a matter of integrating the two into one form”.
References
Basili, H. (2007). Mental health services in Cambodia ; Interview with Meng Eang Thai, STARTTS newsletter
Carey, C. (2009). Addressing the wounds: The process of reconciliation and seeking justice in post-genocide Cambodia . DC-Cam document.
Dunlop, N. (2005). The lost executioner: A story of the Khmer Rouge. Bloomsbury: London
Le Carre, J. (2000). Foreword, “The Gate”, by Francois Bizot, Harvill Press: London
Pilger, J. (2005). Front cover comment on “The lost executioner” by Nic Dunlop, Bloomsbury: London
Saunders, R., & Aghaie, K. (2005). Introduction: Mourning and memory. Comparative Studies of South East Asia, Africa and the Middle East . 25.1 p. 16
For daily report on the ECCC, visit www.cambodiatribunal.org
“After 25 years people are still asking the same questions...we deserve justice as human beings. Victims are just like a glass that has dropped on the floor and broken, and you try to glue it back together. That’s what we are, broken people living in a broken society”. Youk Chhang, Director of the Documentation Centre of Cambodia
In August this year I returned to Cambodia for a brief visit after a gap of 28 years. I had no particular plans when I set off, but felt a need to honour a promise I’d made to myself many years ago that one day I would return. It was intensely emotional to be back in Phnom Penh after so long, with an odd feeling of things being so different, and yet still the same. There is freedom of movement, the streets are alive and colourful, and the tense, paranoid atmosphere I experienced in 1980 is gone, but the distress is still palpable. As Christina Carey from the University of Southern California writes; “Even though thirty years have gone by, the Khmer Rouge and the regimes following it have left Cambodia in a state of chronic pain.” (2009). As it happened, my visit coincided with the trial of Kaing Guek Eav (“Duch”), the former superintendent of S21 (Tuol Sleng) prison where over 15,000 men, women and children were tortured and executed during the four years of Khmer Rouge control. Any thoughts of heading off to Siem Riep to see Angkor Wat were soon abandoned, and I spent the first day of my week in Phnom Penh attending the Extraordinary Chambers of the Courts of Cambodia (ECCC).
It took ten years of wrangling between the Cambodian government and the United Nations to set up this special international court for the specific purpose of prosecuting some senior members of the Khmer Rouge leadership, and the atmosphere surrounding the court is highly charged. There have been accusations of corruption amongst Cambodian ECCC officials, disagreements between the national and international co-prosecutors about whether to prosecute additional Khmer Rouge leaders, and dire warnings from Prime Minister Hun Sen that any further prosecutions would run the risk of plunging Cambodia into civil war. There are many previous Khmer Rouge cadres holding powerful positions in the current Cambodian government, and the blurry line between perpetrator and victim (many Khmer Rouge cadres were children when they were recruited) is a major political and psychological challenge for Cambodia . The proceedings of the ECCC are carefully monitored by numerous interested parties, including national and international journalists, the Cambodian Documentation Centre (DC-Cam), and the Centre for International Human Rights at Northwestern University School of Law.
The day I attended the tribunal there were a few other foreigners, and hundreds of rural Cambodians who had been bussed in by the government due to a concern that 75% of the Cambodian population are not aware of the ECCC. Attending the ECCC tribunal so early on in my visit was like diving straight into Cambodian and international politics, and added to the surreal feeling of past and present converging. My first visit to Cambodia in 1980 was very soon after the Vietnamese invasion ended the Khmer Rouge reign of terror, and Cambodia was in the grip of catastrophic trauma. During the previous 4 years an estimated 21% of the population (close to 2 million people) died as a result of starvation, illness, overwork, torture and execution as “Angkar”, or the Organization, set out to create their Marxist-Leninist- Maoist inspired utopian vision of the ideal agrarian based communist society. When I arrived in Cambodia I could speak only a few words of Khmer, and minimal French, and the Khmer people I met could speak almost no English, but through words, gestures and drawings the people I encountered on my journey from the border of Thailand to Sisophon, Battambang and Phnom Penh managed to convey some of the immeasurable suffering, terror, loss and trauma of the previous 4 years.
The extreme ideologically driven violence, paranoia and cruelty of the Khmer Rouge almost defy imagination. Under the Khmer Rouge cities were emptied, money, wages and private property were abolished, universities, schools, places of worship, cultural institutions, and government buildings destroyed, religious practices and education prohibited, families forcibly separated, and “illegal” sexual activity punished with execution. Everyone lived in constant fear. Children were turned into informers against their parents, uneducated teenagers sent to run hospitals, intellectuals, doctors, scientists and artists killed, and all material goods associated with the “bourgeois” west, such as televisions, books and cars, destroyed. In their attempts to turn Cambodia almost overnight into a “pure” communist society the Khmer Rouge leaders destroyed almost every dimension of Cambodian society. The word used by the Khmer Rouge to describe the action that should be taken against perceived enemies of their revolution was “smashed”, and that is exactly what they did to the country.
As John Le Carre writes in his introduction to a book written by the only westerner to survive imprisonment by the Khmer Rouge, a French man named Francois Bizot; “There is pain that is perceived, and there is pain that is endured, and they are two different worlds, inhabited by creatures of two different races...In the scale of human suffering I did not even qualify for a mention” (200, pg viii). Precisely. Nevertheless, to be in Cambodia in the immediate aftermath of one of the most extreme and brutal regimes in history was profoundly impactful, perhaps heightened by the fact that I was in quite challenging conditions myself. Apart from occasional conversations about practical matters such as food, and insistent questioning by various authorities as to why I was in Cambodia , the only conversations and interactions I had for two months were about what happened under the Khmer Rouge, and I often found myself numb from the extreme horror. The married couple caretakers of the Phnom Penh house where I lived, for example, had had 2 babies during the Khmer Rouge years, both of whose skulls were smashed by young Khmer Rouge cadres in order to ensure that their mother kept working in the rice fields.
I learned in the most immediate and visceral way about the need we humans have to tell our stories, to be heard and recognized, and to have what Martin Buber describes as the “I – Thou” encounter. I have no doubt that this experience was formative in my eventually becoming a psychotherapist. I tried desperately not to dissociate, but of course I did, culminating in nearly fainting when I was taken to see Tuol Sleng ( camp S 21) a few days before leaving Cambodia . Blood stains were still visible on the floor, and the torture instruments displayed, along with thousands of skulls, and “confessions” and photos of the distressingly blank faces of the victims, including 2 young men from Australia and New Zealand who had been “captured” while sailing their yacht off the Cambodian coast.
When I Ieft Cambodia in late January 1981 I wanted to try to stay connected to the country, perhaps through becoming involved in some way with Cambodian refugees in Australia, but instead I became a drug and alcohol counsellor in a women’s refuge in King’s Cross. For many years I gave little conscious thought to what had happened in Cambodia . I was in survival mode myself to some degree, and the dissociation from the unbearable horror of genocide that had begun while I was in Cambodia continued when I returned to Australia . I wanted to believe that the Khmer Rouge’s defeat by the Vietnamese marked a clear cut end to the extreme suffering of the Cambodian people, and the end of the Khmer Rouge, so it came as quite a shock when I read “The Lost Executioner” by Nic Dunlop (2005) after my recent trip and discovered that in fact the Khmer Rouge (backed by the U.S., Thailand and China) remained a considerable threat to Cambodia’s peace and security until the early 1990’s.
As psychotherapists we are interested in the unconscious and dissociative processes that shape lives, and in hindsight it’s easy to see the connection between what I had experienced in Cambodia , and the fact that so soon after my return to Australia I found myself working with drug and alcohol dependent sex workers with their own histories of trauma. I did not have the maturity or psychological capacity to continue what John Pilger describes as the “journey into the dark, suffering heart of Cambodia ” (2005), so I unconsciously found a way to work with suffering that was more “bearable”. On this last visit I made a conscious decision to try to stay as open and receptive as I could to the past and present pain of Cambodia, so in the days after I attended the ECCC, and upon return to Australia, I immersed myself in reports about the trial proceedings, and in literature about the Khmer Rouge, including many accounts by survivors. I have the same response every time I read about the Khmer Rouge as I had when I visited Tuol Sleng in 1980; nausea, dizziness, and a sense of overwhelming horror that leaves me feeling hollow, despairing and drained for days. Many people who research and write about the Holocaust describe similar responses.
Besides attending the ECCC, I also visited several organizations in Phnom Penh that are actively involved in documentation, healing, reconciliation and rescue work. The first on my list was the Cambodian Documentation Centre (DC-Cam), whose motto is “turning a river of blood into a river of reconciliation”. This centre was founded after the US Congress passed the Cambodian Genocide Justice Act in April 1994 and established the Office of Cambodian Genocide Investigations. The Office announced grants to Yale University in 1995 and 1997, enabling Yale’s Cambodian Genocide Program to conduct research on the Khmer Rouge regime, and in 1995 the CGP founded DC-Cam as a field office in Phnom Penh , under the leadership of Youk Chhang, a survivor of Cambodia ’s “killing fields”. In 1997 DC-Cam became fully independent, with a wide variety of donors. The centre concentrates on two major objectives, the first being to record and preserve the history of the Khmer Rouge regime for future generations (memory), and the second to compile and organize information that can serve as potential evidence in any legal proceedings against the Khmer Rouge (justice).
The DC-Cam website includes the following poignant and powerful statement about the destruction and healing of Cambodia :
“DC-Cam's quest for memory and justice has more to do with the future than with the past. It is about the struggle for truth in the face of an overwhelming power that virtually destroyed our society, a power that continues in more subtle ways to threaten our aspirations for a peaceful future. The violence of that power shattered Cambodian society and scattered the Cambodian people across the planet in a terrible diaspora. But no matter how far or near to the homeland, and whether they are survivors or the new generation born after the overthrow of Pol Pot, all Cambodians still suffer from a profound sense of dislocation. This dislocation is rooted in a loss deeper than material deprivation or personal bereavement. It is a loss that can never be recovered, and thus full healing of the wounds of genocide will require that something new be built to take the place of that which has been lost. By reconstructing a historical narrative of what happened to Cambodia, and by striving for justice where that is an appropriate remedy, we aim to lay a foundation upon which all Cambodians can find firm footing in moving toward a better future. Reconciliation in Cambodia will happen one heart at a time.”
When I met with Youk Chhang he said that he feels that unlocking and expressing emotion is the most important task for Cambodia , through theatre, art, Buddhist ceremonies, and education. When at least 40% of the Cambodian population suffers from the legacy of the thirty years of war and the Khmer Rouge genocide, individual therapy is obviously not the answer for the vast majority, and there are numerous individuals, organizations and agencies (including many Australians) involved in trying to find ways to improve the material, emotional and spiritual dimensions of Cambodians’ lives that do not necessarily involve one to one therapeutic work with the very small number of Cambodian psychologists and psychiatrists.
In fact, according to the executive director of the Transcultural Psychosocial Organization (TPO), Dr Chhim Sotheara, (who also uses the word “broken” to describe Cambodia), many Cambodians’ symptoms do not fit the western medical model of PTSD. Thus, although he is a psychiatrist working with enormous numbers of people suffering from what most western psychotherapists would describe as trauma, he prefers the term “psychosocial distress” as a signifier for a combination of conditions including poverty, alcoholism, domestic and sexual violence, psychosis, paranoia, anxiety, depression and fear. The day before I met with Chhim Sotheara at the TPO he had appeared as an expert witness for the ECCC, and his testimony about the massive mental health problems associated with the Khmer Rouge genocide, and the importance of the ECCC prosecutions as “symbolic justice”, was widely quoted in the national and international press.
In our meeting Sotheara described how during his testimony at the ECCC, the defendant Duch (who has basically admitted his guilt) tried to make eye contact with him many times, and actually bowed to him at one point. When I asked him how he felt about this, Sotheara said that he wanted to avoid eye contact because he felt afraid of Duch, knowing that if he had met him in 1975 Duch would have had him killed as a member of the educated classes. However, in the interests of reconciliation, he did eventually nod and bow to Duch. As in South Africa after the end of apartheid, both perpetrators and victims live cheek by jowl in Cambodia , with the added issue that many perpetrators were also victims themselves, or would have been, if they had not followed orders. Cambodia is still politically volatile, with endemic corruption, and while many Cambodians want to see justice done, they are realistic about the constraints of the current climate.
Attending the ECCC and talking with both Cambodian and non Cambodians about the widespread psychosocial distress raised many important questions about differences and similarities between individual and collective trauma, and about the kinds of healing work required in situations of mass distress, As a psychotherapist working in private practice I love the special space and relationship that is created in one to one long term therapy, but at the same time I often struggle with the reality that many people who need psychological support, education and healing will probably never have access to such a resource. This feeling was of course greatly amplified in Cambodia, and my brief trip exposed me for the first time to some of the debate going on in several overlapping communities (in academic, medical, mental health and NG0 circles, e.g.) about what one Australian academic I met in Phnom Penh rather derisively calls “the trauma industry”, i.e. Western agencies and organizations offering trauma treatments in non Western contexts. Increasingly there is awareness that “trauma is a category largely codified by Western medical and psychological institutions, that “trauma studies” as a field has been grounded in events and processes of Western modernity...and that there has been insufficient exploration not only of how Western theoretical and diagnostic models translate into a “non-Western” context but of how sites of traumatic memory in South East Asia, Africa, and the Middle East (dis)confirm, challenge, or revise dominant Western conceptions of trauma and memory” (Saunders and Aghaie, 2005, p. 16).
I am not familiar enough with the literature about this debate or with the realities of working in the mental health field in Indo China to form a strong opinion on the applicability of Western derived knowledge and methods in Cambodia . However, time spent at ECCC, DC-Cam and TPO, and later on at a French NGO in Phnom Penh for abused, neglected, trafficked and abandoned children (whose Cambodian and Western carers are also traumatized), left me feeling that probably many kinds of psychological support and knowledge are needed in Cambodia. While non Cambodians such as the French director of the aforementioned NGO (who told me she is desperate for her own supportive therapy) might benefit from the kind of one to one therapy we offer in the ANZAP community, if only it were available, what most Cambodian mental health workers want is for their indigenous traditions, practices and resources to be respected and recognised. While they appreciate the support and resources offered by the West, they do not want the all too frequent scenario of Western practitioners assuming that their knowledge and methods are inherently superior. In an interview with Helen Basili after a visit to a mental health clinic in Cambodia, Meng Eang Thai, a Cambodian counsellor at the NSW Service for the treatment and rehabilitation of torture and trauma survivors (STARTTS) says, “I have been arguing with people to acknowledge that Cambodians have had the concept of counselling for a long, long time but most of the Western practitioners have disagreed. ..We have to acknowledge that although the Cambodian idea of counselling is different from the Western tradition, it still exists. It’s a matter of integrating the two into one form”.
References
Basili, H. (2007). Mental health services in Cambodia ; Interview with Meng Eang Thai, STARTTS newsletter
Carey, C. (2009). Addressing the wounds: The process of reconciliation and seeking justice in post-genocide Cambodia . DC-Cam document.
Dunlop, N. (2005). The lost executioner: A story of the Khmer Rouge. Bloomsbury: London
Le Carre, J. (2000). Foreword, “The Gate”, by Francois Bizot, Harvill Press: London
Pilger, J. (2005). Front cover comment on “The lost executioner” by Nic Dunlop, Bloomsbury: London
Saunders, R., & Aghaie, K. (2005). Introduction: Mourning and memory. Comparative Studies of South East Asia, Africa and the Middle East . 25.1 p. 16
For daily report on the ECCC, visit www.cambodiatribunal.org
A SYMBOL OF INDIVIDUAL RECONCILIATION IN CAMBODIA
Former S-21 head of prison guard, Him Huy, and former S-21 child survivor, Norng Chan Phal who lost his parents at S-21, are distributing the textbook, "A History of Democratic Kampuchea (1975-1979)" to high school students in Cambodia. At S-21, approximately 14,000 prisoners were tortured and executed. When Vietnamese forces entered Cambodia and discovered S-21 on 10 January, 1979, there were only five survivors at the prison; all five were children and Norng Chan Phal was one of them. The textbook book distribution is part of the Documentation Center of Cambodia's (DC-Cam) Genocide Education project in collaboration with the Ministry of Education, Youth and Sport. In Cambodia, there are 1,321 high schools with one million students from grades 9-12. DC-Cam aims to distribute textbooks to at least 500,000 students by December 2009. (DQK)
Photo by: Heng Sinith (Him Huy is in blue shirt and Norng Chan Phal is in white shirt). Date: Octoer 9, 2009 at Youkunthor High School in Phnom Penh.
Photo by: Heng Sinith (Him Huy is in blue shirt and Norng Chan Phal is in white shirt). Date: Octoer 9, 2009 at Youkunthor High School in Phnom Penh.
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About Me
- Dara Duong
- Dara Duong was born in 1971 in Battambang province, Cambodia. His life changed forever at age four, when the Khmer Rouge took over the country in 1975. During the regime that controlled Cambodia from 1975-1979, Dara’s father, grandparents, uncle and aunt were executed, along with almost 3 million other Cambodians. Dara’s mother managed to keep him and his brothers and sisters together and survive the years of the Khmer Rouge regime. However, when the Vietnamese liberated Cambodia, she did not want to live under Communist rule. She fled with her family to a refugee camp on the Cambodian-Thai border, where they lived for more than ten years. Since arriving in the United States, Dara’s goal has been to educate people about the rich Cambodian culture that the Khmer Rouge tried to destroy and about the genocide, so that the world will not stand by and allow such atrocities to occur again. Toward that end, he has created the Cambodian Cultural Museum and Killing Fields Memorial, which began in his garage and is now in White Center, Washington. Dara’s story is one of survival against enormous odds, one of perseverance, one of courage and hope.