Sunday, March 29, 2009

Tough job ahead for NZ judge

Dame Silvia Cartwright (NZPA)

Sunday March 29, 2009
Source: NZPA (New Zealand)

As many as 1.7 million Cambodians perished in the Khmer Rouge reign of terror, 14,000 of them "class enemies" of the Communist regime executed at Tuol Sleng, the S21 torture centre and prison.

New Zealand judge and former Governor-General Dame Silvia Cartwright is one of five trial judges who must now decide if the man who ran the prison, Kaing Guek Eav, better known as Duch, is guilty of crimes against humanity.

It will be the first case heard by the United Nations-backed Extraordinary Chambers in the Courts of Cambodia (ECCC).

It has been a long road to the first case, after the hybrid local-international court was set up three years ago - a decade after Cambodia sought United Nations help to try those most responsible for the 1975-79 Khmer Rough genocide.

Khmer leader Pol Pot died in 1998.

Dame Silvia, who has been living in Phnom Penh since last July, has been preparing for her role by reading a mountain of evidence.

"I don't think I have read everything by any stretch of the imagination but, by heaven, I've read a fair bit. It's huge," she says.

The ECCC is based on the local Cambodian law, with international law and expertise, and uses the Civil Law system.

Under a civil law system, a complaint is made to prosecutors who gather information which goes to investigating judges. After they investigate, a summary of the evidence and charges to be answered is prepared.

That process in the Duch case took a year and was in private. Last month a hearing decided what witnesses would be heard.

The trial judges - one French, three Cambodians and Dame Silvia - now have the case file and are preparing to go through it in the public hearing.

"Effectively it's our job to test the evidence in public and to allow the witnesses to say what they need to say in public and we then decide whether there is sufficient evidence to convict."

Dame Silvia has been wading through evidence on her computer in her ECCC office.

Once the trial gets under way she will be allocated certain areas to focus on.

"I might be asked to focus on how S21 or Tuol Sleng was actually established, or I might be asked to focus on methods of torture or focus on how many people died or something like that, and it will be my job to be totally on top of the evidence. The evidence goes to hundreds of thousands of pages."

The evidence can also be indirect - for example there are at least 50 films in the file.

"Unlike our system in the common law world it includes everything that anyone ever said on the subject that's been put in this case file, whether its got any evidentiary value or not."

As soon as one of the judges refers to any item in the file it becomes part of trial evidence, and the judges then decide what weight to give it.

"People are still putting material into the case file."

Another challenge for the judges was managing the civil parties.

There are 95 in this case but there are thought to be already 3000 applications for the next investigation of senior Khmer Rouge figures and that figure could go as high as 10,000.

Dame Silvia says each civil party the judges approve is allowed to call and question witnesses.

There are more than a dozen civil party lawyers in the court.

Hearing the witnesses proposed by the prosecution is expected to take about three months.

There will be other witnesses and the judges will also be presented with personal information about the defendant.

If there is a guilty verdict sentencing will form part of the judgement.

A former teacher who is now a Christian, Duch, 66, has admitted his guilt, but the legal system as practised in Cambodia has no mechanism for a plea of guilty.

The judges decide his guilt or innocence after considering all the evidence.

It is alleged most victims at the prison were tortured and forced to confess to a variety of crimes - mainly of being CIA spies - before being bludgeoned to death in a field on the outskirts of Phnom Penh.

Women and children and babies were also killed. Few inmates survived.

New Zealander Kerry Hamill, 28, brother of rower Rob Hamill, died at the prison in 1978, where he was taken after his yacht was blown off course.

Apart from the judgement and sentencing, the judges will also have to resolve difficult legal issues around the charges.

They will make decisions on whether civil parties have proved they suffered damage, and whether they are entitled to reparations.

The tribunal has no money to pay financial reparation and no power to order the government to act.

"All we can really do is to say that these civil parties qualify because they have satisfied us they have suffered damages. That's the extent of our jurisdiction."

The ECCC has been beset with allegations of corruption within the administration, and of being politically influenced.

Its budget, originally $53 million for three years, has increased to $170m for five years.

The Cambodian branch of the ECCC is running out of money after a UN report highlighted problems with salaries and over staffing.

A hold has been put on donor money until problems are resolved.

Other accusations included that staff had to pay kickbacks of up to 30 per cent of their salary in order to get the job.

Corruption is rife generally in Cambodia, but Dame Silvia says the ECCC is quite separate from the rest of the justice system.

Whatever may happen in the administration of the Cambodian arm of the body, Dame Silvia does not think there is a problem with the judiciary.

"I have no hint of any corruption of any description amongst my Cambodian judge colleagues."

One commentator has said the court's viability is in question.

"I don't believe the court is compromised to that extent," Dame Silvia said.

"If it were, a number of the judges would pack our bags and go away."

Any issues of corruption would have to dealt with in local courts.

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