New Zealander Rob Hamill, 46, wept in front of reporters yesterday outside the Khmer Rouge tribunal at the news that the torture and murder of his elder brother Kerry, whose yacht was captured by Khmer Rouge forces at Koh Tang in 1978, was now a fact in the eyes of the law.
Standing nearby on the lawn outside the courtroom, another civil party participant in the trial of Kaing Guek Eav, alias Duch, wept because her situation was just the reverse.
Hong Savath, 47, learned the court was not convinced that she was the niece of You Sreng, her father’s brother, who was once employed by the Japanese Embassy and who Ms Savath says was also murdered at Tuol Sleng prison.
Already broken by his murder and his memory now distant, the it was if the bond of her uncle’s kinship was erased again by the court’s decision to not recognize her claim.
“They did ask me to clarify” my relationship to him, Ms Savath said through an interpreter. “They also went to my village to ask the maid if he really died.”
Ms Savath said that both her parents were also lost to the regime in Pursat province and that her uncle’s family was also killed, leaving her with no one to share her grief except the old family servants.
As if in a valedictory list for the departed, Judge Nil Nonn read out yesterday the names of 66 people, civil parties, who had survived internment at S-21 or the adjunct Prey Sar commune prison camp S-24, or who had demonstrated the loss of family or demonstrated “particular bonds of affection” to a victim of Duch.
“Yun Chhoeun, for the loss of a nephew Yun Loeun, who lived in his house until aged 15, when he was conscripted into the army,” Judge Nonn read.
“Sin Sinet alias Srun, for the loss of her grandfather Pheach Kim alias Sin, in whose house she had lived until the age of 7.”
But of the 24 people, including Ms Savath, whose claims as civil parties in the Duch trial were found to be unproven, Judge Nonn said nothing.
Pierre-Olivier Sur, a French civil party lawyer whose 10 clients were all recognized by the court, said the court’s recognition of victims in the Duch trial “contains all the power and the plenitude of their suffering.”
“At last, grief can have a beginning and an end. This is precisely the symbolic force of a name carved in the stone of a monument to the dead,” he said.
Since their creation in 2007, procedural rules on the participation of civil parties have evolved and narrowed over time as the court sought to manage the high volume of people petitioning for damages.
Procedurally, victims were at first admitted on a provisional basis and told their recognition by the court depended on a second finding, confirming that they were in fact the victims of crimes the court sought to punish.
At a press conference after the verdict was handed down, the British lawyer Karim Khan said potential victims had been brought to the point of deliverance only to have their emotions whipsawed when they were not recognized by the court.
“These are civil parties that have come from the villages, that have filled in forms, that have crept all the way to Phnom Penh. They have had lawyers from the four teams. They believed that they were engaged in the criminal process, that their voice was being heard and they endured nine months of trial, these months awaiting the judgment, to hear today for the very first time that they have not been recognized,” he said.
“I think for many civil parties this is a slap in the face,” Mr Khan said.
The court’s rules have been changed so that such circumstances will not recur at future trials, he said.
“But that does not ameliorate the pain, the discomfort, the shock and the dismay that so many civil parties feel today,” he said.
“It’s as if the court late in the day is rejecting their loss and their tragedy.”
Lars Olsen, legal communications officer for the tribunal, said that the court had been bound to apply its own rules.
“The court has simply applied the rules that were applicable at the time,” he said.
Before departing from the tribunal yesterday, Ms Savath said she was happy with the sentence handed down to Duch.
“What I am not satisfied in is that the judges should have told me from the beginning” that I would not be recognized as a civil party, she said. “I will appeal because they should have told me from day one.”