USF LAW STUDENTS LEARN BY DOING IN PHNOM PENH: A GENOCIDE MOOT COURT THAT IS HARDLY MOOT

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.