Saturday, June 12, 2010


It was refreshing to hear that USF law students taking the genocide class had, as part of their required assignments, the viewing of the Matt Dillon film – City of Ghosts. I’m told it’s an offbeat comedy about Cambodia filmed in Phnom Penh. I gather there is not a serious scene in the film despite the grim history of its location and a title that could surely make you think you were about to go there.

The truth is you need a break from genocide in this town. With the tribunal on-going, albeit in fits and starts (the verdict on Duch now being prepared with apparently more trials to follow), with controversy over how the trials are being conducted, and with speculation about who future defendants might be (the complex procedures of the tribunal do not make such information immediately available), Phnom Penh is rife with the topic everywhere one turns.

I found that out yesterday over breakfast and dinner. I met with a British consultant at the Cambodian Center for Human Rights, Rupert Abbott, for breakfast at my hotel, ostensibly to discuss where USF students would be placed in internships. Indeed, we did discuss the interns, but it was a sideshow to Rupert’s main area of interest – what did I think about the Khmer Rouge Tribunal (KRT), where did I think it headed, and would USF be interested in a joint project to discern the KRT’s legacy for Cambodia.

I detailed my own mixed feelings: glad it was under way, wondering whether the Cambodian population truly supports the effort (recent polls suggest they do), concern about the 30 year gap between the events and the trial, confusion about how defendants are selected and whether it is possible to now hold people accountable in light of the integration of many KR into today’s Cambodia and the death of so many since Pol Pot’s reign ended, musings about how the trials play out in a Buddhist society (does religious belief in the afterlife impact the way a society might judge its own who are living?), and still questioning whether a truth commission might have better served Cambodia’s needs.

Rupert describes his views too and raises the fascinating idea of a project focused on the trial’s legacy for Cambodia. He ponders whether the trials will serve as a reminder for Cambodia’s future? Will it strengthen the rule of law generally? Will it strengthen Cambodia’s domestic courts (where it is said that future trials may take place rather than in the international setting in which the KRT is now being conducted)? All good questions, all worthy of more discussion for future work.

Seated outside for dinner at the newish Le Petit France with a mild, humid but still refreshing breeze blowing, the topic is the same – this time with long-time KRT warrior Helen Jarvis and her husband Alan. Helen is finishing a stint with the tribunal heading its victims’ unit, a job she has held for the past year. For the past 11 years she has immersed herself in genocide work with DC Cam and for the past several years the tribunal itself. The dinner is consumed with talk of the trials. When will the verdict against Duch come down? Why is it taking so long? Is that good or bad? What will the next trials be like? Will the ruling in this first trial expedite future proceedings? Has the victim’s unit made progress over the past year (apparently lots of it)?

Soon dinner is consumed and the questions keep coming. They only stop when we all decide that it is time to call it an evening. I ride back to my hotel in my waiting tuk-tuk. Howard, Helen and Alan head in the opposite direction.

So here’s to City of Ghosts! Medium popcorn, no butter, and a small diet Coke please!

Thursday, June 10, 2010


At 66 Sihanouk Boulevard, just around the National Monument, is a typical Phnom Penh building – surrounded by a high fence, gates opening to a large courtyard in the front where cars, motorcycles and bicycles park, a door opening into a ground floor and a stairway leading up a few stories. The residents of this typical structure, however, are hardly typical. Inside, live the ghosts of Cambodia’s horrific, tragic past. They are stuffed in folders in file cabinets and stored on hard drives. They are the documentary remains of the perpetrators and victims of the Khmer Rouge destruction of Cambodia from 1975 to 1979, tenaciously assembled, organized, analyzed and dissected by Youk Chang and his dedicated band at the Documentation Center of Cambodia (DC – Cam). This is ground zero in the struggle to educate millions about the catastrophe and to hold accountable the few who are still alive.  

This morning five USF law students are seated at tables on the ground floor, sun streaming through windows over their backs, facing an audience of 30 or so, Khmer DC Cam employees, a few interns from other law schools in the United States, Professor de Nike (who has done all of the teaching these past few weeks) and myself as they get set to argue the law and facts they have studied in their genocide class. This is the capstone of their class, a moot court exercise in which they debate whether prosecution of the senior Khmer Rouge leaders and “those most responsible for serious crimes and violations” is possible under the 1948 UN Convention on Genocide. The simple signs on the table – Prosecution and Defense – denote their assignments.

The charges detailed in the exercise conjure up the unimaginable history of the Khmer Rouge and speak volumes about the seriousness of the material in which the students have been immersed for the past few weeks:

• Death because of failure to seek humanitarian aid
• Death due to failure to provide basic health care
• Death due to preemptive evacuation of Phnom Penh in April 1975
• Death by execution
• Death and extinction of Vietnamese, Cham and Chinese populations in Cambodia

Death by…and so the charges go!

And they begin. Methodically, comprehensively surveying and arguing the law and facts from the prosecution and defense perspectives, the former hammering home that this is genocide plain and simple within the meaning of the international statute; the latter countering that the crimes may have been horrific, unimaginable, immoral, inhuman (add your own descriptor), but they do not amount to genocide as defined by international law.

As the arguments unfold, I am impressed by the amount of material they have absorbed in such a short period of time and that they are articulating so well. I am impressed by their professionalism in a torrent of horror that hardly needs a prosecutor’s elocution to understand and which no defense counsel could deny.

As I listen, two realizations make me particularly proud of the students’ work and of the law school’s efforts to engage to engage the world. The first is prompted by a student comment. As she recounts facts in support of her argument, she mentions the bank of file cabinets to my right. In them, are reams of evidence that have been assembled in the past fifteen years by DC Cam in their tireless work - evidence that is being used to support the on-going international tribunal that is taking place at this very moment in a specially built courtroom just beyond Cambodia’s airport, south on Highway 4. (On this day the trial is in recess and a verdict will soon be announced in the trial of Duch who ran Toul Sleng, the notorious school-turned-prison where 21,000 perished.) If “moot” means no longer of consequence, then the students’ moot court arguments are hardly that. The evidence they marshal today and the arguments they make affect real lives and the historical record in ways too profound to imagine. Amidst the death and destruction, the students today are arguing a living history that affects not only Cambodia but the world.

I also realize that both sides in this exercise – the Prosecution and Defense – are being asked to do the impossible – put aside one’s gut reaction to the slaughter and argue the law. As I watch, I think, that this is the ultimate test of our commitment to the rule of law with justice – a trial before judgment, a commitment to due process and a fair hearing, no matter how horrific the crime. It is a test we would rather not take - the temptation to surrender those principles too overwhelming. It is a test we often do not pass – images of Guantanamo and the suspension of our sacred right of habeas corpus race through my mind in a jumble of thoughts provoked by the drama the students are presenting. Today, however, these soon-to-be-lawyers are passing with flying colors, tying facts to law and parrying arguments made by opposing counsel.

In a Q and A following the argument, I ask the students about this – how, I ask, did the prosecution get their arms around the fact that they had to argue the law in the context of the facts, that horrific facts were not enough? How, I ask, did the defense make such plausible arguments to acquit murderers of genocide knowing how horrible the facts were? (They argued that other crimes may have been committed but the facts did not amount to genocide as defined by the 1948 Convention – a problem for the on-going Tribunal.)

The answers were heartening; a recognition that bedrock principles were at stake. One student defense counsel pondered my query and said that he had thought about the same question. He said that he had written an email home, joking about the fact that he was going to defend the Khmer Rouge in the moot court exercise and that this was going to be his great contribution to humanity, or something to that effect. I reminded him of the importance of due process and the rule of law to a society and that in fact what he might have said in his email was that he was protecting humanity in the role that he had been assigned as defense counsel to the Khmer Rouge. He thanked me for that thought, but really there was no need for that – the quality, intensity and sincerity of the students’ arguments today demonstrated that they know precisely how high the stakes are and the importance of what they were doing.

Indeed, these students needed no reminders. As I snapped a picture of them when it was over, the relief evident by the smile on their faces, I had a feeling that we were training lawyers who understood the consequences of their actions and the responsibility that comes with the privilege of studying law. I sensed that this generation of USF lawyers would have the guts, instincts and knowledge, when the time came, to do the right thing and to say that this is a line we must not cross. It was a good feeling as I pushed closed the heavy gate at 66 Sihanouk Boulevard and headed to the Java Café for a celebratory drink with the students.

Tuesday, June 8, 2010


The volleyball and basketball courts look like those found in any gym, playground or camp. You can imagine the set up and the spike, or the effortless, all-net three point shot from the corner.

What you can’t imagine is that on these courts play limbless victims of landmines as well as polio victims and industrial accident amputees. This is no ordinary gym, playground or camp. It is Banteay Prieb the vocational rehabilitation center twenty five kilometers north of Phnom Penh where 100 ‘students’, all disabled, gain skills and self-esteem to, as the brochure proudly proclaims “live in peace and reconciliation and the joy of being with others.”

I had visited Banteay Prieb once before in 2002 and am spurred to do it again by a moving article by photo journalist Peter Lemieux that appeared in the Jesuit monthly, Company. I arrive with colleague Howard de Nike, teaching USF’s genocide course in Phnom Penh, in a taxi that turns right off of Highway 4 into a sprawling compound with 20 or more buildings that at once looks primitive and arid but also surprisingly together and lush, bougainvillea blooming with large red and white flowers and palm trees dotting the property.

People are sitting in wheel chairs or sprawled under trellises to avoid the very hot sun. I ask for Father Indon, the Korean Jesuit who has been running Banteay Prieb for the past 7 years, and with whom I’ve been corresponding. After several false starts down dusty paths, we are greeted by a young man in t-shirt and khaki pants who hardly fits your imagine of a Jesuit priest. Father Indon beckons us to a small table off a kitchen in a covered area that is completely open on one side. Soon we are joined by another Korean – a volunteer named Martha who would be our guide for the day.

The story quickly unfolds. The compound was once a military communications center and a Khmer Rouge prison/killing field. In 1991, at the time of the U.N. presence in Cambodia, it began its transformation into what it is today -- Banteay Prieb, The Center of the Dove. More than 1500 victims of land mines, polio and industrial accidents have made their way through the 12 month or more training program en route to productive lives with skills in electronics, sculptural wood carving, sewing, auto and motorcycle mechanics and agriculture. Of the 70 or so employees who make Banteay Prieb a startlingly productive venture, virtually all are Khmer and most of them, graduates of the program. Fr. Indon informs us of this last fact so when we tour the facility, it does not come as a surprise that many instructors are themselves in wheel chairs missing at least one limb and often more.

And tour the facility we do for nearly one and one half hours – Martha leading us from building to building with more poignant and moving images than the mind can absorb:

• A complex electronics class where students and teachers (the ratio is an intimate 8:1, numbers we would love to have a USF) study and dissemble transistor circuit boards, complex diagrams covering the completely full chalk board.
• A sewing building with amputees that turn out dresses, scarves and handbags on machines powered by special chairs that require only a rocking motion to propel the needle to stitch the cloth, a chair that legless students take with them when they leave to work on their own outside of Banteay Prieb.
• A series of buildings that is home to the wheel chair production ‘plant’ where more than 1000 wheel chairs are produced yearly with parts made at Banteay Prieb and imported from Vietnam and Thailand – wheel chairs of beautiful wood with a special third wheel to accommodate Cambodia’s difficult, broken and bumpy streets. This is Banteay Prieb’s only truly profitable enterprise we are told.
• Wood sculpture work – intricate and beautiful taught by a legless instructor to perhaps 20 students who study and work intensely for up to two years to hone this difficult skill that will provide a means of subsistence when they leave Banteay Prieb.
• Pens of pigs, small, medium, large and extra large, ducks, chickens and a rice paddy that is not in production at the moment, all tended by students who will someday emerge into the fields and farms of rural Cambodia – all of them male save for the one mischievous female student with one arm wreaking havoc by a good-natured punch and kick here and there to her male counterparts. Amid the laughter, they do stop long enough for a photograph.

And so it goes. As we walk Banteay Prieb, I say to Howard that the focus on skills training and the students’ work almost makes one forget that these are severely disabled people – the beauty of a particular sculpture, or the cleverness of a magnetic snap on a woman’s shoulder bag, or the efficient production of wheel chairs, the momentary focus. It is impossible, however, to walk the grounds without being jarred back into a sense of amazement at what the human spirit can conquer and what extraordinary souls like Father Indon can inspire (a moniker and claim that he would no doubt disavow.)

The metaphor to Cambodia’s rehabilitation is again inescapable. A maimed country, infrastructure destroyed, skill-less and poor, inching its way back with the help of those willing to preserve and the determination of those who have no choice but to persevere. But this momentary abstraction dissipates amid the reality of where we are and what these people are doing.

It is now nearly three hours since we arrived. We visit the Banteay Prieb crafts store, a small, metal, one-legged disabled Jesus crucifix my favorite purchase for a Jesuit colleague. The yellow, metered taxi sits incongruously under a palm tree near one of the eight buildings that serve as dormitories for small groups of students and their mentors. Father Indon and Martha thank us for coming. I promise to stay in touch as ideas for sustained contact and cooperation rumble through my head.

The cab exits Banteay Prieb and we turn left onto Highway 4, heading back to Phnom Penh in a torrential downpour that was kind enough to wait until we finished our tour before it unleashed its fury. Within minutes, the cab is leaking water through the overhead light and the driver is trying to keep one eye on the road while wiping down the console that is now wet as are we. This should be our biggest problem I think as an inspiring Banteay Prieb recedes in the distance.

Monday, June 7, 2010


How many times since we’ve been working in Cambodia (1994) have we heard accounts of the story: April 17, 1975, the ‘liberators’ led by Pol Pot and Ieng Sary, force an evacuation of all of the cities in Cambodia and begin a so-called agrarian revolution that ends in the elimination and murder of 2 million Khmer or a quarter of the population of Cambodia or some horrific number depending on whose account one hears. Nowhere, however, is that story told with more force than in the German film “Kampuchea: Death and Rebirth” which screened last night here in Phnom Penh in a special showing for the five USF law students who are studying war crimes and experiencing first-hand the Cambodia that fell victim to Pol Pot’s reign of terror and the culmination of decades of colonial domination – a destruction from which Cambodia struggles to recover to this day.

We all took tuk-tuks (which have taken over the city in the past five years, colorful ‘carriages’ pulled by a motorcycle) to the Meta House where Nicco, the German owner and his Cambodian wife, prepared a simple curry dinner atop their multi-story building that houses an art gallery, bar and small ‘theater’ where the film was shown. In fact, Meta House is in some ways is a metaphor for the decades-long recovery of this maimed country: an effort to create community, rejuvenate art, provide a meeting place, a cold beer (sort of cold), and the inevitable hang out for the ex-pat community that is ever present as aid projects from around the globe continue (the headline in today’s Phnom Penh Post reports that 3.0 billion in assistance is slated for Cambodia through 2013.)

We all walk up flights of steep stairs to the patio on the roof where dinner was served in the open air. Adjacent to it is the bar and a screening area where films are regularly shown – a theater that seats perhaps 50 and a sizeable screen on the wall.

Kampuchea: Death and Rebirth was filmed right after the Vietnamese occupied Cambodia in 1979 bringing a formal end to the Pol Pot time although the KR resistance continued into the 1990s. The film begins with footage of the ceremonial signing of the agreement between the KR and the Vietnamese as a backdrop to the April 1975 evacuation of Phnom Penh and the unimaginable terror, mayhem and destruction that followed. 90 minutes later one is drained by the stories of suffering and loss. Even the return to the cities, the ouster of Pol Pot and the KR, and heartening and moving scenes of students returning to abandoned schools that sat empty for years cannot erase the sense that the trauma will never fully end. Sitting amid dust and ruble as they return to Phnom Penh, Khmer, young and old, bear witness to the starvation, forced labor, and death of virtually all of their families. The survivors find it as incomprehensible as we do to this day: The killing of their own by their own.

Yet, there is a more than a glimmer of the indominatbility of the human spirit as small children begin again to learn to read and as teachers return to school rooms when just months before intellectuals – as they were called – were routinely slaughtered. In a moving scene, the young KR still barely in their teens, now prisoners, recount how they became cold blooded murderers. The film notes poignantly that these “murderers” were themselves victims of the Pol Pot time, having been ordered to murder the very people – the so-called intellectuals – who could have educated them.

The film seems interminable. Not because it is too long, but because of the pain it evokes from the voices on the screen and to me (and I suspect all of us) as the scenes continue: the starvation, the words of Sary’s wife, the supreme KR apologist claiming it all the fault of the Vietnamese juxtaposed brilliantly with the actual plight and words of the Cambodians imprisoned, shots of Toul Sleng, a shot of an abandoned school being reclaimed with the grisly find of human remains in a freezer left there by the KR who occupied the site for four years, and on…and on…and on. And finally, we are back where the movie began – at the ceremonial signing, knowing now the reality behind the handshakes and the and the embraces of the KR and the Vietnamese.

As the movie ends, we all traipse down the steep, uneven stairs. There is little to say. What could one say? But the movie is a fitting prelude to the students as they prepare for a moot court presentation that they will be making on Wednesday at the Documentation Center of Cambodia (D Cam). They know and must feel that this is no academic undertaking. The arguments they make are being played out in real time at the tribunal and involve the lives and deaths of real people – tragically millions of them.


Tuyen, who works for the SIIR USAID labor project, and I are in the back of a Hanoi taxi headed for the Vietnam Chamber of Commerce and Industry, VCCI, the agency that represents employers in Vietnam. At least we think we are headed for VCCI. Traffic is at a complete standstill on a five lane road (if there is such a thing as a ‘lane’ in Hanoi) that is quickly narrowing to one to accommodate construction. We are trapped in a blizzard of cars, motorbikes, and bicycles trying to make it past a construction site that is shielded from view by corrugated steel. At one point, the ladder on the back of a motorbike nearly makes it through the rear window of the taxi. My camera is pointed out the window, taking pictures of the congestion, road side stores, and masked-women avoiding pollution sitting side saddle on motorbikes.

We pull up to VCCI which is housed in a multi-story modern building about fifteen minutes from the center of Hanoi. On the sixth floor is the office of Phung Quang Huy whose Spartan digs, a metal table, four metal chairs and the usual picture of Ho Chi Minh on the wall, match perfectly his simple dress – grey shirt and black pants befitting a party official.

But Mr. Phung is anything but a party official. Rather, he is spending his time trying to establish dispute resolution procedures to handle cases that he claims are arbitrarily decided by the Department of Labor without input from employers or workers. He is looking to create, he says, a “ten year plan” to develop and train an infrastructure – one that can handle both collective and individual disputes.

His hope is to establish an independent arbitration center, as he calls it, to work without government interference to resolve equitably labor disputes. In his vision, there would be centers at both the national and local level, each with clear goals and tasks. To create such a center he is looking for support for a pilot project which no doubt he hopes I could help facilitate in light of my connection to SIIR. I suspect that also explains his desire to see me, changing his schedule when I had informed his assistant that I could not make the Friday date that Mr. Phung originally offered.

The meeting does not last long, Mr. Phung’s points having been made, a follow-up meeting with the SIIR project, a possible supporter, is suggested by Tuyen and tentatively planned for the following week. During the meeting, Mr. Phung’s passion, like Professor Binh’s, to “get it right” seems clear. Through their eyes Vietnam’s labor laws are ill equipped to resolve disputes with the interests of workers and employers in mind. Each in their own way is searching for a new way, for new models that are yet to be defined and whose relationship to the state remains unclear.


The second day of seminars: We are at the labor university and she introduces herself as a Professor Do Ngan Binh, a labor law professor at the Hanoi Law University (where USF has conducted judicial training workshops in the past.) She is firing off comments and questions at a rapid pace. Why is the number of unionized employees so low in the United States? What should the model of labor and industrial relations be in Vietnam? How can Vietnam best resolve disputes, particularly when many labor issues never make it to the courts? How can Hanoi Law University cooperate with the University of San Francisco? Isn’t this the laundry list of must-dos to resolve problems of legal labor education, she asks, rattling off financial resources, skills training, knowledge of the substantive law and clinical experiences for students?

I try to take notes, scribbling down her staccato verbal bursts. Staring at the pages of my recently purchased Vietnamese notepad, I patiently try to respond, emphasizing that surely I could not suggest the best model for labor relations for Vietnam and, moreover, there is likely no one model that fits all given our different problems, stages of development and historical, cultural and political differences. With all of this she takes no issue but she seems edgy and frustrated as I conclude my answer, expressing a hope for future extensive cooperation between USF and HLU.

After the session, Professor Binh approaches me and firmly grips my hand, asking whether we can meet later that afternoon to finish our conversation. I agree and five hours later we are sitting in the offices of the USAID funded labor project – SIIR – that has put the seminars together. Seated around a small circular table with black glasses perched on her face and her black hair pulled back, Professor Binh pulls out her notepad and begins to write furiously, attacking the page, words pouring forth in Vietnamese connected by arrows and lines as if she were solving an organic chemistry problem. I look at the translator – a young, very bright lawyer named Ha who has helped me so much during the trip – with confusion and a smile. Ha returns my smile as if to say, I’m not sure what Professor Binh is saying either, but I’ll do my best to explain it.

Ha indeed does try to explain, but it takes some time to really understand what is on Professor Binh’s very quick and very organized mind, even if it is not apparent to this Western Dean. At bottom, Professor Binh is explaining that the desire for a harmonious and peaceful workplace concerned with the interests of both employees and workers – a concept we discussed at length at the seminar – cannot be realized without principles and processes in labor law that are not part of Vietnam’s current framework. She is not sure what they are or how to articulate them, but she knows they are there and accessible if only she can get advice from others, study, and have access to those drafting the law, the latter apparently a particularly sore point because she is consulting on the new labor code but having difficulty with the person at the Ministry with ultimate authority who she says “just does what he wants”.

Her passion is evident. So is her desire to get it right for Vietnam. As I listen to her, I hear a tone that comes from many here – frustration coupled with excitement about what might be accomplished in the future; and, a hope that the future will bring change that really addresses Vietnam’s workplace issues. I listen patiently knowing that I surely don’t have the answers. I do promise resource materials, continuing email dialogue, and more exchanges with Hanoi Law University. Professor Binh seems momentarily satisfied, and, as fast as she was writing, she again firmly grips my hand, thanks me for my time and leaves, promising to stay in touch – and I have no doubt that she will!


Two days of labor law seminars for me – one at the Ministry of Labor and the other at the Ministry’s labor university – while Professor Markham gets the students settled and lectures on antitrust law before the Vietnam Competition Agency. The Vietnamese are particularly interested in labor issues as their labor laws are in the throes of a major revision. 12 years ago, USF trained labor judges in Hanoi and Ho Chi Minh City and as recently as this past January, hosted a Vietnamese labor delegation that asked us to critique the latest version of the labor code. In March, we followed up with an analysis – particularly portions relating to trade unions – and the seminars were a follow on to that analysis.

Both days of labor talks focused on an overview of our labor laws with a particular emphasis on union-employer relations, an issue with which Vietnam struggles mightily. The second seminar at the labor university maintained a similar focus but also included discussions about labor education in law schools. The Vietnamese are very interested in our rich mix of substantive courses, clinics, student organizations, and connections with alumni as we fashion education focused on worker justice – an area of particular strength at USF.


• The contrast between the ministry audience and the labor university attendees: The former majority male, older, more seasoned and clearly more focused on the substantive law and the implementation of the new labor (whenever it might take final form). The latter, virtually all labor law professors and lecturers, all very young and almost entirely female. All were interested in our structure (and surprised at the small percentage of our workforce that is unionized), but also very concerned about how to educate working people about the labor laws and how to educate lawyers and officials to effectively implement the labor code.

• The issues: So similar to ours in so many ways – achieving worker/employer balance to protect the interests of both, and establishing dispute resolution procedures to resolve problems early. But Vietnam’s conflict between a centralized state and allowing workers the right to freely associate is quickly apparent as is the fact that the interest in dispute resolution is motivated by the recognition that government processes – administrative and the courts – are not up to the task of handling the workplace strife in this nation of nearly 100,000,000 million people.

• The reality: Despite the labor code drafts, any final resolution of the labor code is a long ways off, a fact that may not be explicitly admitted but which is obvious as the dialogue continues (and a fact exacerbated by the pendency of the next People’s Congress which will help set Vietnam’s future course.)