Cambodia report FINAL edits by Chhayphorn Suon

ATLAS PROJECT Armed Conflicts â&#x20AC;&#x201C; Peacekeeping - Transitional justice Law as Solution

Transitional Justice in Cambodia: Analytical Report

October 2010

Consultant: Alex Bates MA, LLM

1 Executive summary .................................................................................................... 3 Cambodia: general contexts ....................................................................................... 5 Key Features of the ECCC ....................................................................................... 21 Legal basis and characterisation .......................................................................... 21 Mandate................................................................................................................ 22 Composition and structure ................................................................................... 25 Procedure ............................................................................................................. 29 Funding ................................................................................................................ 31 Past cases and current status of ECCC activity ....................................................... 34 Initial Investigations and Introductory Submission ............................................. 34 Case 001 ............................................................................................................... 35 Case 002 ............................................................................................................... 39 Cases 003 and 004 ............................................................................................... 41 Assessment of the ECCC ......................................................................................... 45 Justifications of the hybrid system ....................................................................... 45 Specific Criticisms of the ECCC ......................................................................... 52 Victim Participation at the ECCC ........................................................................ 60 The impact and legacy of the ECCC.................................................................... 69 A Truth and Reconciliation Commission for Cambodia?........................................ 78 Conclusions and lessons learned .............................................................................. 83 List of Sources ......................................................................................................... 90

Parameters of the report This report evaluates the Extraordinary Chambers in the Courts of Cambodia (the “ECCC”), the “hybrid” domestic Cambodian court with United Nations assistance set up to prosecute the former leaders of the Khmer Rouge and others most responsible for the crimes committed in the Democratic Kampuchea regime between 17 April 1975 and 6 January 1979 which left an estimated 1.7-2.2 million people dead. The Consultant conducted a field mission in Phnom Penh from 3-15 August 2010 and conducted interviews with the principal actors. He interviewed victims, representatives of Cambodian civil society, international organisations, academics and journalists. The Consultant reviewed the substantial literature from a wide variety of sources: academic, developmental and journalistic. The views and conclusions expressed within this report are based on the field mission and on the literature review, and are entirely those of the Consultant alone, save where attributed. The Consultant previously worked in Cambodia at the ECCC from August 2006 until May 2009 as a senior assistant prosecutor for the United Nations in the Office of the CoProsecutor.

Executive summary •

The complex historical, political, cultural and social contexts make any accountability for the crimes of the Khmer Rouge extremely challenging.

•

The Agreement between the UN and the Royal Cambodian Government and the resulting Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) was from the outset a compromise solution.

•

One of the most challenging aspects is the political environment within which the ECCC operates: domestically, Cambodia suffers from an underfunded and underdeveloped criminal justice system; there is little domestic respect for the rule of law; and corruption is prevalent in all areas of public life.

•

It is unsurprising that these influences have tainted the court’s operation, reputation and credibility. Cambodian Government political interference threatens to compromise the integrity and independence of prosecutorial and judicial independence.

•

The internal structure of the court is complex, with a dual administrative system operated by the United Nations and the Royal Government of Cambodia respectively.

•

The judicial offices are similarly split – safeguards to prevent tactical voting or the blocking of prosecutions or investigations have only been partially successful.

•

The lack of a Registrar or Court President has compromised the effective functioning of the ECCC.

•

The ECCC’s civil law procedure has not been fully understood by all parties. There has been conflict between staff from a civil and those from a common law tradition.

•

The funding of the tribunal by voluntary donations creates uncertainty and insecurity. Adequate and available funding should be the minimum acceptable standard.

•

The ECCC is likely to be one of the most expensive experiments of transitional justice ever, with the cost per indictee particularly high.

•

Notwithstanding the rhetoric of capacity building, it is unlikely that there will be any significant impact upon the domestic legal system given the lack of political will to improve it.

•

The first public trial was concluded successfully and according to appropriate international fair-trial standards. Observers considered that victim participation, although far from straightforward, added a meaningful dimension to the trial.

4 •

The Trial Chamber delivered a significant decision on the first accused’s unlawful pre-trial detention by the Cambodian authorities – it remains to be seen if these principles will be argued in domestic courts.

•

There are considerable benefits from having the ECCC situated within Cambodia: it is more accessible to the affected population; victim participation at the tribunal has the potential to contribute to reconciliation; it has stimulated a nationwide inter-generational dialogue about the Khmer Rouge regime; and the population has begun to learn about its recent history.

•

Victim participation through Civil Party status has been hailed as groundbreaking at the ECCC. In reality, problems of still-developing procedure, insufficient funding, planning and Outreach have compromised the full exercise of rights of participation. The sheer number of potential victims for case file 002 has required a radical re-think of representation and it remains to be seen how this will operate.

•

Although the ECCC is a mechanism of retributive justice, the importance of coordinating the parallel restorative initiatives of civil society is critical to the success of the court.

•

The legacy of the ECCC is now being addressed - it is hoped that this will be carefully considered well before 2015 when the tribunal is currently scheduled to close.

Cambodia: general contexts 1. Cambodia is a country in South-East Asia sandwiched between Thailand to the west, Laos to the north and Vietnam to the east. It has a small coastline, bordering the Gulf of Thailand to the south. Latest statistics list the population in 2009 as 15 million.1 2. In 1975, the year the rebel communist forces known as the Khmer Rouge seized power, Cambodia had a population of approximately seven million.2 By the time the Khmer Rouge were driven from Phnom Penh in January 1979, between 1.7 million and 2.2 million people, or twenty-five to thirty percent of the population, had perished. Demographers and historians have estimated that up to half of these deaths in the Democratic Kampuchea (or “DK”) regime were a result of execution, a third from starvation and a smaller yet still significant number from disease.3 Whether these facts are described as massive human rights violations or international crimes, this was loss of life on a hitherto unprecedented scale for any one country. 3. It has taken thirty years for any credible, public and official examination of these events. The Extraordinary Chambers in the Courts of Cambodia (the “ECCC”) started its operations in mid-2006. One of the new breed of “hybrid” international courts,4 the ECCC was backed by the United Nations yet situated in the country in which the atrocities had occurred. Unlike the other hybrids, however, the ECCC is staffed by a majority of national judges and other national personnel. Cambodians exert a far greater influence in the ECCC than do the national components in other, similar courts. Yet it is the self-avowedly poor state of the Cambodian judiciary5 and the feudal nature of political relationships within the country that has led many to predict that the ECCC “experiment” was doomed to failure.6 4. Nevertheless, four years into its work, the ECCC has rendered a credible judgment in its first case. On 26 July 2010 former Khmer Rouge prison chief

Source: Asian Development Bank Cambodia Factsheet as at 31 December 2009.

Etcheson: 2005, p119.

For a review of some of these demographic studies, see Etcheson: 2005, 117-119. A lesser death toll of 1.5 million (of which executions only amounted to 31%) is suggested by Kiernan: 2002, 456-465. 4

Including the Special Court for Sierra Leone, the Special Panels of East Timor, the Special Tribunal for Lebanon, the Bosnian War Crimes Chamber, the Supreme Iraqi Criminal Tribunal and the regulation 64 panels in Kosovo. For general discussion see: Romano, Nollkaemper and Kleffner, (eds.): 2004; and Mendez: 2009, 53-95. 5 6

Consultant's interviews with Nil Nonn, Tan Senarong, Long Panhavuth.

For example, Amnesty International Report on the proposed structure of the ECCC, 23 April 2003, which noted “The combined provisions not only threaten the integrity of the legal process for the proposed Cambodian tribunal, but if approved, would set a dangerous precedent that could compromise fair trial standards for any future international or mixed tribunals which may be proposed to confront and end impunity for the most grave abuses of human rights and humanitarian law.”

6 Kaing Guek Eav, better known by his revolutionary name Duch, was convicted of crimes against humanity and war crimes and sentenced to 35 years imprisonment. Five years were deducted to take account of his prior unlawful detention under the Cambodian Military Court,7 meaning that having already spent 11 years in pre-trial detention, he has 19 years left to serve.8 5. Four other suspects, the sole surviving “senior leaders” of the Khmer Rouge, are in ECCC provisional detention awaiting what will prove to be a much more complex trial. These suspects are elderly, in poor health and may not live to see any judgment against them. Five additional (and final) suspects have yet to be investigated, with the international and national components of the court in dispute about the desirability of prosecuting further targets.9 The maximum possible number of people brought to justice before the ECCC will therefore number only ten at most. 6. There is much debate amongst the victims about whether this limited number of accused is an adequate and appropriate response to the crimes, committed as they were on such a scale. Some victims enter this debate as direct participants in the ECCC process as Civil Parties, and as such introduce a restorative element to the tribunal’s traditionally retributive process. In a country where almost everyone was a victim of the Khmer Rouge regime, it is perhaps surprising that there has been neither truth commission, nor any other formal and systematic mechanisms of justice, reconciliation or rehabilitation. It is certainly worthy of examination whether alternative or additional mechanisms are both appropriate and feasible. 7. Every country in which mass crimes were committed has its own particular circumstances. It has long been recognised that Cambodia possessed a particularly challenging combination of factors that has rendered the search for justice and reconciliation all the more difficult. Before examining the structure of the ECCC and critically assessing its achievements to date, it is to those specific circumstances that we now turn.

In itself a hugely significant ruling, as we shall discuss.

The Co-Prosecutors v Kaing Guek Eav alias Duch, Case File No. 001/18-07-2007, Judgment of the Trial Chamber 26 July 2010 (“Duch Trial Chamber Judgment”). 9

See below. Also see Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71: Public Redacted Version, Disagreement Number 001/18-11-2008-ECCC/Pre-Trial Chamber, 18 August 2009 (“Pre-Trial Chamber Decision on CoProsecutors’ Disagreement”).

7 The historical context 8. Throughout the centuries, several influential themes, events and ideologies have shaped Cambodia’s history and identity.10 9. The oldest and most obvious motif is the world-renowned temple complex in the area around the modern-day Cambodian town of Siem Reap in the north of the country. The largest of the monuments, Angkor Wat, is the country’s most famous symbol, it adorns the national flag11 and as one historian described it, is the “touchstone” of Cambodia’s history and identity: “Those massive stone wonders are to modern Cambodians what the Parthenon is to today’s Greeks – architectural masterpieces and solid, visible reminders that Cambodia was once the premier state and culture of the region.”12 This influence persists even today.13 10. Angkor Wat was constructed in the early part of the Khmer empire. A succession of kings ruled from the ninth to the fifteenth centuries A.D over a vast swathe of territory stretching from the South China Sea in the east to the Andaman Sea in the west. It is well beyond the remit of this report to examine the lasting impact upon Cambodian culture of the Khmer empire, but it is often portrayed as the country’s golden age.14 The Khmer “god-kings” were responsible not only for constructing magnificent temples but also for the highly advanced and impressive irrigation schemes, building a self-sufficient society that some have argued was used as the model for Democratic Kampuchea.15 11. The fall of the Khmer empire in the fifteenth century coincided with the rise of Vietnam. The Vietnamese conquered and occupied Cambodia for several centuries, creating what the ECCC Trial Chamber described as the “hereditary enmity”16 between the two countries. To this day,17 many Cambodians still ascribe “annexationist, expansionist” motives to the Hanoi government, a

For a full 2000-year history of Cambodia, see Chandler: 2007.

Apart from the two-year period under which Cambodia was governed as a United Nations protectorate, Angkor Wat has adorned every different incarnation of the national flag (source: an online summary of an article appearing in Flag Bulletin: 1990, 3-15). 12

Becker: 1998, 29.

Observing daily life in Phnom Penh, many thousands of businesses are prefixed with “Angkor”.

See for example Becker: 1998, 29-32; Kiernan: 2002, 7-8

For instance, Short: 2004, 293. Short argues that all previous regimes have also considered that Angkor was the benchmark. One could say that still holds true today. 16 17

Duch Trial Chamber Judgment, paragraph 60.

From the Consultant’s own conversations with numerous people whilst living in Phnom Penh between 2006 and 2009.

8 charge that was widely repeated in Democratic Kampuchea.18 As we shall later see, this rivalry had a bearing upon both the rise and demise of the Khmer Rouge, as well as in part the length of time it took to bring them to justice. 12. The historical events in the second half of the twentieth century provide particularly important contextual detail. For the latter part of the nineteenth and first half of the twentieth century, Cambodia was governed as a Protectorate of France, part of the Union Indochinoise including what is now Vietnam and Laos.19 One historian describes how Cambodia was “mummified” by the ninety years of colonialism – opportunities for education in particular declined sharply and the country was preserved in a domestically, politically and economically undeveloped state.20 This helped to sow the seeds of resentment and organised political protest long before the country gained independence in 1953. 13. Many Cambodian pro-independence activists studied in Paris, where they were introduced to communism, the ideology that would later inform their future political careers. Among these young French-educated intellectuals was Saloth Sar, later to take the nom de guerre Pol Pot, and his fellow future prominent Khmers Rouges including Ieng Sary, Khieu Samphan and Hou Yuon. They all fought for, and gained, independence – they were later to fight for communism.21 14. Cambodian independence saw Norodom Sihanouk proclaimed King of Cambodia. A year later the 1954 Geneva Conference was convened to bring an end to the conflict in Korea and the First Indochina War. Cambodia was guaranteed neutrality,22 yet Sihanouk’s reign did not remain peaceful or stable for long. Allegations of corruption and a crackdown on dissent saw the polarising of views and a growing insurgency in the 1960s. There was a serious deterioration in the economic situation. The Cambodian communists, who Sihanouk memorably called Red Khmers or Khmers Rouges, began a resistance movement and took to the jungle.23 15. By then, the whole region was engulfed in the Second Indochina War, more commonly known as the Vietnam War in America and the American War in Vietnam. Sihanouk was overthrown in 1970 and an American-backed General, Lon Nol, took control of Cambodia.24

For example: Democratic Kampuchea government statement, 10 May 1978, in Far Eastern Relations – Cambodia’s Strategy of Defence against Vietnam – “The Vietnamese want to take our territory and turn Cambodia into their satellite, making it part of Vietnam” (from the Consultant’s own records). 19

For a more detailed history of the French colonial period in Cambodia, see Becker: 1998, 32-65.

Kiernan: 2002, pp4-6.

Short: 2004, 47-84.

Becker: 1998, 77.

See, generally, Becker: 1998; Kiernan: 2002; Short: 2004.

See for example Chanda: 1986, 64.

9 16. The Vietcong had been using supply lines from North Vietnam through the Cambodian border to launch attacks on Saigon and South Vietnam. The Americans had known about this route, the Ho Chi Minh trail, for some time. As early as 1969, with Sihanouk’s tacit approval, US planes carpet-bombed the border regions of Cambodia. With Lon Nol now installed as leader of Cambodia, the Americans were free to intensify their bombing campaign.25 17. For the next four years, 540,000 tonnes of bombs were dropped on eastern Cambodia. 150,000 Cambodian civilians were killed.26 The scale of the American bombardment27 left more than just physical scars. Psychologically and materially, the Khmer Rouge – by now a guerrilla movement with a small but significant fighting force – were galvanised. They resolved to fight not just the Americans, but also their own corrupt government in Phnom Penh.28 They joined common cause, albeit uneasily, with the Vietnamese communists. The US bombing proved to be an effective recruiting campaign, and the poor population of Cambodia began to join the Khmer Rouge in numbers.29 18. The Khmer Rouge guerrilla movement began to win large sections of territory in Cambodia. Even deposed King Sihanouk joined their cause whilst in exile in China, exhorting Cambodians to join the Khmer Rouge “maquis” - the revolutionary struggle from the jungle.30 Finally, as described by one commentator, through a combination of strong leadership, organisation, popular support and the co-opting of Sihanouk and the Vietnamese communists, the forces of the Khmer Rouge swept aside Lon Nol’s Khmer Republic and took power on 17 April 1975.31 19. Democratic Kampuchea as a state was totally subordinated to the Communist Party of Kampuchea (“CPK”). The senior leaders of the CPK envisaged and implemented a radical overhaul of Cambodian society. They pursued a policy of replacing the economic, social and political structures of the old Khmer Republic with a new revolutionary order. They implemented this policy through a number of means: the forced transfer of city-dwellers to the countryside; the creation of CPK-controlled agricultural cooperatives, worksites and irrigation projects in which people were forced to work long hours in extremely difficult conditions with little food; the de facto prohibition of the practice of religion and the de-frocking of the monkhood; the forcible

For more detail see Shawcross: 1979. Also see Kiernan: 2003, 20-25 and Chanda: 1986, 63-64.

Kiernan: 2002, 19 and 24; Becker: 1998, 156.

One source estimates that between February and August 1973 alone, the United States of America dropped 257,465 tonnes of bombs onto Cambodia which was 50 percent more than the total tonnage dropped on Japan during World War II: Chanda: 1986. 28

Becker: 1998, 156.

Norodom Sihanouk said “With his bombs, [President Nixon] performed the miracle of turning our people into revolutionaries within weeks” – quoted in Etcheson: 1984, 119. 30

For a more in-depth discussion of the civil war of 1970-1975, see Etcheson: 1984, 103-123.

Etcheson: 1984, 124-136.

10 assimilation of the Cham Muslim ethnic minority and the eradication of ethnic Vietnamese living within Cambodia; the sealing of Cambodia’s borders and an insistence on the concepts of “mastery and self-reliance” which saw a return to traditional medicines and a rejection of foreign assistance or technologies; and the elimination of the officials of the previous regime. 20. Democratic institutions were a sham: there was neither properly constituted elections nor right to vote. Allegiance was owed to “The Organisation” or Angkar, the precise identity of which, or who, was never made public to ordinary Cambodians. In reality, it was the device by which Pol Pot and his closest colleagues governed through fear. 21. The old judicial structures were destroyed, replaced by a network of reeducation, interrogation and security centres across the country for those deemed to be “enemies” of the revolution. As the regime progressed, the (unwritten) definition of who was an “enemy” continually expanded. Secret arrests and summary executions spread confusion and terror. Repeated waves of internal purges meant that even many high-ranking members of the CPK were arrested, tortured into confessing their supposed treason, and executed along with their entire families.32 With no possible recourse to legal or democratic mechanisms for the people, CPK control was absolute: they had subjugated an entire population.33 22. By the time the CPK had seized power, the ancient enmity with Vietnam was being resurrected. Disagreements over the re-drawing of the maritime border between DK and the newly unified Vietnam escalated into armed conflict, the Third Indochina War. By 1976 and 1977 there were regular armed incursions by DK forces across the eastern border into Vietnam. Vietnamese prisoners of war, both military and civilians, were taken captive, paraded in the media and forced to sign confessions alleging the expansionist intentions of Vietnam, before being executed. These events so angered the Vietnamese that they staged a full-scale invasion of DK in late 1978. Their vastly superior army had little difficulty in swiftly conquering the DK Regime’s Revolutionary Army of Kampuchea. Within a matter of two weeks the Vietnamese had driven the Khmer Rouge from power and, on 7 January 1979, captured Phnom Penh.34 23. Pol Pot and the remnants of the CPK fled to the mountains and jungles of the Thai border, from where they were to wage a guerrilla campaign against successive Cambodian governments for more than two decades. 24. Cold war power politics meant however that it was the Vietnamese who were immediately vilified for invading a sovereign country, rather than the former

See in detail Chandler: 1999, 43-49, 51-70 and 74-76.

See, in brief, Duch Trial Chamber Judgment paragraphs 82 and 83. For a more detailed history of the DK regime, see in general Etcheson: 1984 and Becker: 1998. 34

See, in brief, Duch Trial Chamber Judgment, paragraphs 59-82. For a more detailed history of the conflict, see in general Chanda: 1986

11 leaders of Democratic Kampuchea for enslaving and killing their own people. Stories of these crimes had been emerging from the refugee camps on the borders with Thailand as early as 1977. Yet although various countries made submissions backed up with thousands of pages of testimony to the United Nations Commission on Human Rights,35 the Khmer Rouge government in exile was still recognised as the legitimate government of Cambodia by most of the world. 25. In Cambodia itself immediately after the invasion, the Vietnamese installed a government of various former Khmer Rouge commanders who had defected to Hanoi in 1977 and 1978, among them Heng Samrin, Chea Sim and Cambodia’s long-serving modern-day Prime Minister Hun Sen.36 The new state, renamed the People’s Republic of Kampuchea (“PRK”) by the Vietnamese conquerors, immediately established the People’s Revolutionary Tribunal (“PRT”) to try the “Pol Pot-Ieng Sary Genocidal Clique” for the crimes committed during the DK era.37 26. The PRT was generally acknowledged as a show trial. The two defendants, Pol Pot the former Chairman of the CPK and Ieng Sary the former Minister of Foreign Affairs, were tried and sentenced to death in absentia. As one historian remarked “the verdict had already been written into the script in advance.”38 27. In the years immediately after the Vietnamese withdrawal from Cambodia in September 1989, many different factions were vying for political power in Phnom Penh. The United Nations was called in to oversee a supposed transition to peace. Even then, under the United Nations Transitional Authority in Cambodia (UNTAC) from 1991 to 1993, key Khmer Rouge leaders were permitted to establish a political presence in Cambodia’s Supreme National Council.39 It was not until the Khmer Rouge boycotted and attempted to sabotage the UNTAC-organised elections in 1993 that the tide began to turn against them. 28. Internationally, various efforts were made to hold the Khmer Rouge accountable, including an attempt to bring a case before the International Court of Justice.40 Despite all the evidence pointing to the atrocities, however

See generally Stanton: 1987, 341-348, referencing the report prepared for the United Nations Commission on Human Rights Report Analysis of the Human Rights Situation in Democratic Kampuchea, U.N. Doc. E/CN.4/Sub.2/414/Add. 1-10 (1978). 36

Becker: 1998, 312, 441 and 470.

For a discussion of the PRT and an examination of the evidence that was produced, see Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary: Documents from the Trial of Pol Pot and Ieng Sary (Pennsylvania Studies in Human Rights) Howard J. De Nike, John Quigley, and Kenneth J. Robinson, 2000. 38

Etcheson: 2005, pp14-17, at p15.

Kiernan: 1999.

Etcheson: 2005, pp131-2.

12 the exiled Khmer Rouge continued to enjoy international backing throughout the 1980s. Financed militarily by China, the Khmer Rouge continued their guerrilla campaign against the PRK. Many western countries continued to recognise them as the de jure government of Cambodia, and they retained the country’s seat at the United Nations until 1992.41 29. Efforts to outlaw the Khmer Rouge and expose their crimes slowly took shape. In May 1994, the Cambodian Genocide Act was passed in the United States of America. The US State Department was directed to commission an investigation into violations of international criminal and humanitarian law during the DK regime. Under the 1994 Act, an agreement with Yale University also saw the foundation of the Cambodian Genocide Program (“CGP”) to provide complementary documentation and research capability that later developed into the Documentation Centre of Cambodia (“DC-Cam”). As one historian has noted “these efforts have greatly advanced the quality of legal opinion and the evidentiary basis upon which accountability mechanisms could be supported.”42 30. The newly formed Royal Government of Cambodia (“RGC”) had originally pursued a more pragmatic approach: they welcomed any and all former Khmer Rouge who gave up their arms to join them. Many tens of thousands did so. However, several remaining factions refused, which undoubtedly was one of the reasons the RGC passed the Law on the Outlawing of the Democratic Kampuchea Group in July 1994. This criminalised membership of the Khmer Rouge and specified January 1995 as the date beyond which any amnesty for crimes committed in Democratic Kampuchea would not extend.43 Over the course of the next few years, there were growing calls for an end to the impunity of the Khmer Rouge crimes. The road to prosecutions and the fraught negotiations 31. On 21 June 1997, Cambodia’s co-prime ministers Hun Sen and Norodom Ranariddh sent a letter to the United Nations formally requesting assistance in bringing to justice persons responsible for the “genocide and crimes against humanity” committed in Democratic Kampuchea between April 1975 and January 1979. The motives for this request have been questioned, with many considering it was simply a strategy for politically defeating the remaining Khmer Rouge leaders rather than seeking justice for the millions of Cambodian who perished under their regime.44 32. As the UN was considering its response, news came through of Pol Pot’s death in April 1998 in the northern Anlong Veng region of Cambodia near the mountainous jungle border with Thailand, parts of which still then remained

Kiernan: 1999.

Etcheson: 2005, 133-134.

Etcheson: 2005, 134.

See, for example, Shawcross in Mills, Nicolaus and Brunner, Kira (eds): 2002, p46.

13 under Khmer Rouge control. He had supposedly died of natural causes, although at the time of his death his own party had placed him under arrest for ordering the assassination of his former DK senior military commander, Son Sen.45 33. Later that same year, the United Nations dispatched a three member Group of Experts to Cambodia to evaluate the evidence and the nature of any crimes, assess the feasibility of prosecution and explore the different legal options for bringing the perpetrators to justice before either a national or international tribunal. 34. The Group of Experts produced their report on 18 February 1999, which outlined the competing concerns in some detail.46 They concluded that bringing the perpetrators to justice was “a matter not only of moral obligation but of profound political and social importance to the Cambodian people.”47 However, they highlighted that due regard must be had to the “unique agglomeration of political forces” in Cambodia, in particular the strong connections both modern political parties had with the Khmer Rouge.48 These factors had a bearing on their conclusions about the nature of any tribunal established to bring the perpetrators to justice. 35. The Group of Experts also examined the Cambodian criminal justice system. They highlighted the impact of the years of civil war and the resulting lack of qualified legal professionals. They discussed the legal infrastructure, poor even by the standards of a developing country. But their gravest assessment was reserved for the functioning of the system as a whole. They concluded that the level of corruption, the routine subjugation of judicial decisions to political influence and the almost total lack of public confidence in the judiciary were such that they could not recommend anything other than an entirely international tribunal.49 A Cambodian tribunal with international assistance was rejected, because “even such a process would be subject to manipulation by political forces in Cambodia.”50 UN secretary-general Kofi Annan endorsed these findings in his oft-quoted letter to the UN Security Council of 15 March 1999: “I am firmly of the view that if the international standards of justice, fairness and the process of law are to be met in holding those who have committed such serious crimes accountable, the tribunal in question must be international in character.”

Chandler: 1999, 178-186.

Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135: hereafter “Group of Experts Report.” 47

Group of Experts Report, paragraph 2

Group of Experts Report, paragraphs 95-98.

Group of Experts Report, paragraphs 122-138.

Group of Experts Report, paragraph 137.

14 36. The Cambodian government rejected these findings. The now sole51 Prime Minister Hun Sen sent a modified request by letter to the Secretary-General on 17 June 1999 for assistance in establishing a national court with the participation of foreign judges and prosecutors. By 2001, Cambodia had itself drafted a domestic Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea.52 37. Despite the Group of Experts’ report, Member States continued to encourage the UN to continue seeking an agreement with the Cambodian government to establish a suitable tribunal. But in February 2002 after a further eighteen months of mediations, UN Legal Counsel and chief negotiator Hans Corell announced that the United Nations was withdrawing from the process, stating: “The United Nations has come to the conclusion that the Extraordinary Chambers, as currently envisaged, would not guarantee the independence, impartiality and objectivity that a court established with the support of the United Nations must have…Therefore, having carefully considered these concerns, the United Nations has concluded that the proceedings of the Extraordinary Chambers would not guarantee the international standards of justice required for the United Nations to continue to work towards their establishment…”53 38. Nevertheless, the United Nations relented after coming under great pressure to resume the negotiations. The volte-face was complete on 6 June 2003 when the United Nations signed the Agreement establishing the Extraordinary Chambers in the Courts of Cambodia.54 It took another two years for the funding and other details to be finalised, and a further year before judges and prosecutors were sworn in. The Co-Prosecutors’ initial investigations commenced in the third quarter of 2006. After almost ten years of negotiations, the Cambodian government had got what it wanted: a domestic court with international assistance. Current contexts: socio-economic environment 39. Cambodia ranks 137 out of 182 in the Human Development Index, with an average life expectancy of 60.6 years, 76.3% adult literacy and a GDP of

Hun Sen had deposed his co-Prime Minister Norodom Ranariddh in a coup in July 1997. See Adams: 1997. 52

The Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 10 August 2001, was promulgated in its final amended form on 27 October 2004. 53

Statement by UN Legal Counsel Hans Corell at a press briefing at UN Headquarters in New York, 8 February 2002. 54

Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (“The Agreement”).

15 US$731 per capita.55 The latest report from the Asian Development Bank (“ADB”) highlights how recent economic growth has been narrowly concentrated in the garment, construction and tourist industries. These are predominantly sited in urban areas with limited benefit to the poorest 80% of the population who live in the countryside. As the ADB notes, “there is a pressing need to diversify the economy to enable the rural poor to contribute to, and benefit from, economic growth.”56 40. Cambodia, then, is a country with an ever more marginalised and disadvantaged poor population. A quarter of all Cambodians live on less than US$1.25 a day. Nearly a third live below the national poverty line.57 Yet these inequalities are not all caused simply by underdevelopment. Some are driven by greed and corruption. In his August 2009 report, the United Nations Special Representative of the Secretary-General for Human Rights in Cambodia, highlighted the one particularly obvious area of inequality, the issue of landgrabbing: “I sensed a disconnect between national law that recognizes people’s rights to own land and establishes clear property safeguards, and what appears to be widespread land grabbing and alienation, in both urban and rural areas. In the current context of economic growth, which has given rise to escalating land values and land speculation, evictions of communities which have been living for years in informal settlements appear to be commonplace, and mostly without fair compensation, to make way for high-end development. … I have also been informed that in rural areas, indigenous and rural communities are often left without recourse to protect their land from being taken by powerful individuals, or for mining or land concessions.”58 41. Such a disconnect is starkly highlighted by an increasingly visible and flamboyantly wealthy Cambodian urban elite. Dubbed the Khmer Riche, one commentator describes how these sons and daughters of the ruling classes are expensively educated abroad and return to Cambodia. They own supercars, mansions, high-end fashion boutiques and live as though they are completely above the law.59 Anyone who has spent any time living in Cambodia will recognise these descriptions in an instant.

All statistics from the United Nations Development Programme’s Human Development Report 2009. GDP figures are from 2009, listed on the US State Department’s background notes to Cambodia, updated 23 July 2010. 56

Asian Development Bank, Cambodia factsheet, 31 December 2009.

Report of the United Nations Special Representative of the Secretary-General for human rights in Cambodia, United Nations Human Rights Council, 31 August 2009, UN Doc A/HRC/12/40, paragraphs 17 and 18. 59

Andrew Marshall “The Khmer Riche: Making a Killing in Cambodia”, The Sunday Times Magazine, 15 February 2010.

16 42. The benefits of abundant natural resources of timber, gems and minerals and oil (the latter most recently discovered in Cambodian waters in the Gulf of Thailand) have so far failed to trickle down to the poorest sections of society. A damning report following an investigation by the organisation Global Witness in 2007 revealed the extent of illegal logging with the connivance of and to the benefit of the army, the police and members of the government.60 Such corruption is endemic in Cambodia, and to quote Transparency International in their March 2009 report has pervaded every sector of Cambodian public life.61 43. During the debate in the Cambodian National Assembly in October 2004 to discuss the Agreement between the UN and the Cambodian Government on the establishment of the ECCC, one opposition politician estimated that the state lost hundreds of millions of dollars annually through corruption.62 Transparency International’s Corruption Perception Index for 2009 ranked the country 158th out of 180 countries surveyed.63 44. Despite significant resources and the wealth of the elite, the Cambodian economy is still heavily dependent on foreign donations.64 Almost half of the national budget comes from overseas economic aid, a position unlikely to change in the foreseeable future.65

Current contexts: political and legal environment 45. Cambodia is technically a multi-party democracy under a constitutional monarchy, but in reality the political situation has solidified to a de facto autocracy under the leadership of Prime Minister Hun Sen and his ruling Cambodian People’s Party (“CPP”). 46. Although the most recent elections in 2008 saw less violence and intimidation than in previous years, as well as more vigorous and open campaigning across

Global Witness - Cambodia’s Family Trees: Illegal Logging and the Stripping of Public Assets by Cambodia’s Elite, June 2007, (“the Global Witness Report”). 61

The U4 Anti-Corruption Resource Centre – Overview of Corruption in Cambodia, U4 Expert Answer, 23 March 2009. 62

Speech of opposition leader Sam Rainsy in the Debate and Approval in the National Assembly of the Agreement between the United Nations and the Royal Government of Cambodia, and Debate and Amendments to the Law on trying Khmer Rouge Leaders, October 4 and 5, 2004 (“National Assembly Debates 4-5 October 2004”). Available in Searching for the Truth, DC-Cam publication, Special English Edition Third Quarter 2004, pp26-55. 63

Transparency International’s Corruption Perception Index 2009.

The Global Witness Report alleges that billions of dollars’ worth of foreign aid has done relatively little to improve the lives of ordinary Cambodians: page 8. 65

In 2009, Cambodia received US$989 million in foreign aid, whereas the country itself generates US$1.38 billion in revenue (Source: US State Department’s background notes to Cambodia, updated 23 July 2010.)

17 the country, the CPP retained power with a landslide majority.66 An EU Election Observation Mission concluded that despite a number of improvements on previous campaigns, the elections still fell short of international standards. Particular problems included “consistent and widespread” use of state resources by the CPP; distributions of money and gifts by party officials and a pattern of frequent “defections” of opposition political leaders and activists to the CPP; and CPP domination of the media.67 47. One senior Phnom Penh journalist explained how state radio and television are aligned with the interests of the CPP and “do not do independent reporting.”68 The head of the United Nations’ Office of the High Commissioner for Human Rights (“OHCHR”) in Cambodia summarised the wider position in an interview given to the Consultant in Phnom Penh: “We’re not operating in western society where there’s already a mature civil society, independent media and public opinion – this is not the case. No public opinion, no independent media, no mature civil society, so the only thing is to engage with the powers that be, based on building bridges.”69 48. A legacy of the UNTAC period, Cambodia also has an extremely large NGO community, advising and assisting on every conceivable social, economic, political and legal issue. Human rights issues are particularly well represented by both international and national NGOs. Their presence is boosted by the UN’s OHCHR in Phnom Penh. However, when faced with the realities of operating in Cambodia, and the difficulties of effecting any real change in government policy, many NGOs face a difficult decision. They know that if they speak too bluntly, or campaign too vigorously, they risk being shut down by the government. Most prefer to continue their work in the knowledge that should they abandon their cause, those who they are attempting to assist would be far worse off. Disturbingly, a recent OHCHR report further highlighted the “shrinking space” for civil society to protect and promote human rights, noting, “continuing attacks and harassment directed against human rights defenders and community activists.”70 49. One of the most difficult areas of human rights in which to work is justice and legal reform, given Cambodia’s particularly poor state of legal development. There is a dramatic difference between theory and the practice. Cambodia is a signatory to the International Covenant on Civil and Political Rights,71 and is the only ASEAN member to have ratified the Rome Statute for the

Un: 2008.

European Union Election Observer Mission, Preliminary Statement, 29 July 2008.

Consultant’s interview with Douglas Gillison (Executive Editor of the Cambodia Daily newspaper).

Consultant’s interview with Christophe Peschoux.

Report of the OHCHR in Cambodia for 2008-2009.

Mohan: 2009 (2): 25.

18 International Criminal Court.72 Cambodia has detailed, newly revised substantive and procedural criminal codes. But as one commentator has noted, the rule of law is not and has never been an important factor in Cambodia.73 Power and patronage are the keys to success in Cambodian political life. The government does not permit court-administered justice to impose any restrictions or control over those who have power and influence.74 Public servants generally are poorly paid and seek to supplement their income through demanding bribes.75 The Cambodian people know this, and have little faith in their criminal justice system.76 50. Unsurprisingly for such an area of low priority for the government, the budget for the court system is a mere fraction of the total national budget. In 2007, Cambodia had only 142 judges, 72 prosecutors, and 601 court clerks for 23 courts including the Appeals and Supreme Courts. Judges, prosecutors and other legal professionals work in cramped conditions, with heavy caseloads and a lack of basic necessities.77 51. The section in the Group of Experts’ 1999 report highlighting the problems and inadequacies in and public mistrust of the Cambodian justice system could just as well have been written ten years later. The cultural and religious contexts 52. The national religion of Cambodia is Theravada Buddhism.78 Buddhist monks have traditionally been the most well respected members of society, free from the corruption tainting politicians and others in public life. As the Consultant has previously examined elsewhere,79 many consider it essential that any form of accountability should be grounded in Buddhist principles. As we shall examine later in this report, indigenous and culturally-resonant practices such

Although Cambodia has signed a bilateral immunity agreement with the United States of America Raab and Poluda: 2010.

Etcheson: 2005, p168.

Un and Ledgerwood: 2010.

The practice of police officers requesting bribes appears to be across the board, from traffic control (from the Consultant’s personal experience and observations of life in Phnom Penh) to investigations of sexual abuse and trafficking (website of humantrafficking.org referring to a US State Department Report on Human Rights in 2006.) 76

See University of California, Berkeley, Human Rights Centre – So We Will Never Forget: A Population-based Survey on Attitudes About Social Reconstruction and the ECCC, January 2009 (“UC Berkeley Survey”), pages 15-16. 77

UC Berkeley Survey, quoting the Asia Foundation’s Judicial Independence Overview and CountryLevel Summaries pp19 and 24. One senior Cambodian prosecutor explained how he had to buy his own printer, photocopy machine and desk and had little stationery: Consultant’s interview with Tan Senarong. 78

Ian Harris – ‘Onslaught on Beings’: A Theraveda Buddhist Perspective on Accountability for Crimes Committed in the Democratic Kampuchea Period, in Ramji and van Schaak 2005, 59-95 at 59-62. 79

Bates: 2007, 185-195 at 190-191.

19 as truth ceremonies and days of remembrance should undoubtedly play their part in assisting a traumatised society to come to terms with its past. This is even more important considering the limited nature of any prosecutions at the ECCC, and the scepticism some Cambodians feel about what the court can achieve.80

The evidential context 53. Unlike all other international or internationalised tribunals whose establishment and operations followed on relatively quickly from the events under investigation, the ECCC is asked to judge crimes that are now more than thirty years old. The passage of time of course has a significant negative impact on the quality of recollection of victims and witnesses. Documents go missing or are destroyed, and the tropical environment ensures rapid degradation of crime scenes, mass graves and other physical evidence. 54. The language issue is also a major logistical challenge. The vase majority of DK-era documents are in the Khmer script, unintelligible to foreign investigators, prosecutors or judges. In the four years of the court’s operation so far, there have only been two native English speakers employed by the ECCC (one as an investigator, one as a translator) who can read the documents in their original language. There have been no native French speakers who read and write Khmer. This places foreign judicial staff at an extreme disadvantage to their Cambodian counterparts, and creates huge pressure on the ECCC’s translation and interpretation services. The lack of court-standard translations of the original Khmer documents, and interpretation of the court proceedings, has caused major delay and confusion,81 and has even been the subject of legal challenges from the Defence.82 55. The sheer scale of the Khmer Rouge crimes, and the dehumanising and disorientating way in which all traditional social, religious and family structures were destroyed, has left vast numbers of the population traumatised. Such was the evidence of Cambodian psychologist Dr Chhim Sotheara in the Duch trial.83 Expanding upon this, Wendy Lobwein the head of the ECCC’s Witness and Expert Support Unit (“WESU”) explained how there is very little opportunity for recovery from mass crimes as all the support services were

Harris in Ramji and van Schaak: 2005, 85-88.

One of the problems is that there is no consensus on legal terminology. See Eng: 2009.

ECCC Pre-Trial Chamber – Decision on Khieu Samphan’s Appeal Against the Order on Translation Rights and Obligations of the Parties, Case 002/19-09-2007-ECCC/OCIJ (PTC11) 20 February 2009 (PTC Translation Appeal Decision”).

Dr Chhim Sotheara testified that 40% of all Cambodians over the age of 18 experienced posttraumatic stress disorder as a direct or indirect consequence of the Khmer Rouge regime: 25 August 2009, trial transcript day 64, pp 9 and 17 - The Co-Prosecutors v Kaing Guek Eav alias Duch, Case File No. 001/18-07-2007.

20 destroyed (family, police, hospitals, courts) at the time the offences were committed.84 The need for caution and sensitivity when dealing with all witnesses to mass crimes cannot be overemphasised. 56. An added complication is that for the last three decades the events under investigation have been given a particular interpretation by successive Cambodian governments to serve their own political ends. 57. In establishing the People’s Revolutionary Tribunal in 1979, the Vietnamese clearly set the tone by restricting the court’s consideration of responsibility for the mass crimes to two individuals. Pol Pot and Ieng Sary were the erstwhile “genocidal clique” who by received wisdom at the time were chiefly if not exclusively behind the crimes of the Khmer Rouge crimes. There has been a tendency for a reductive view of criminal accountability, no doubt because of the proximity of current political leaders to the former DK regime. Some scholars have, on the contrary, examined the possibility liability of regional commanders.85 What might be feared, or at least unwanted, from the ruling elite is for probing investigation to reveal a more nuanced picture of responsibility. Many of the senior figures in CPP politics today were once junior and mid-ranking Khmer Rouge cadres before defecting to the Vietnamese in 1977 and 1978.86 58. We will examine the claims of political interference in the work of the ECCC, which the initial critics of the court had always feared would materialise. But first we turn to its specific characteristics.

Consultant’s interview with Wendy Lobwein.

Democratic Kampuchea was divided into seven regional “zones” which divided into “districts” which were themselves divided into “sectors” – there was a similar tri-partite administration at each level (Secretary, Deputy Secretary and Member). For varying views of “grass-roots upwards” criminal responsibility see Steve Heder – Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative Perspective in Ramji and van Schaak: 2005, 377-423; and Vickery: 2000. 86

See, generally, Kiernan: 2002.

Key Features of the ECCC Legal basis and characterisation 59. The ECCC was always envisaged as being of an exceptional nature and limited duration.87 The two founding instruments of the ECCC set out the legal basis and should be read together: namely the Agreement between the United Nations and the Royal Cambodian Government Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (“The Agreement”)88 of 6 June 2003 and the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (“The ECCC Law”), as amended on 27 October 2004.89 60. The very title of the tribunal encapsulates some of the tensions that have played out in the first four years of its operations. Although the institution is technically90 part of “the courts of Cambodia”, it is considered separate from or “extraordinary to” the existing court structure. Nowhere in either the Agreement or the ECCC Law is the relationship between the ECCC and the regular Cambodian courts codified. The ECCC’s Internal Rules regulating all procedure from investigation through to appeal are similarly silent.91 It was left to the ECCC’s Pre-Trial Chamber to pronounce that “[f]or all practical and legal purposes, the ECCC is, and operates as, an independent entity within the Cambodian court structure.”92 61. However, there have been inconsistent judgments on whether the ECCC’s independent status entitles it to make comments on the actions of domestic Cambodian courts. The Pre-Trial Chamber’s assessment in 2007 was that neither the ECCC nor the regular Cambodian courts have the authority to

Overseas Justice Initiative – Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, September 2010 Update (“OSJI September 2010 report”). 88

The Agreement, reference above.

The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,. 90

Article 2 new of the ECCC Law.

Save for a reference to the “inherent specificity” of the ECCC in rule 21(1): see the ECCC’s Internal Rules (“Internal Rules”), r.5, as revised on 9 February 2010. 92

ECCC Pre-Trial Chamber Decision on Appeal Against Provisional Detention Order of Kaing Guek Eav alias Duch, Case number 001/18-07-2007-ECCC-Office of Co-Investigating Judge (PTC01) dated 3 December 2007, (“Pre-Trial Chamber Duch Detention Appeal Decision”) paragraph 19. This part of the decision was upheld by the Trial Chamber in its Decision on Request for Release in the case of Kaing Guek Eav alias Duch, Case File No. 001/18-07-2007, 15 June 2009, (“Trial Chamber Decision on Duch’s Request for Release”) paragraph 10: “as a court of special (‘extraordinary’) and independent character within the Cambodian legal system, the ECCC was designed to stand apart from existing Cambodian courts.”

22 review each other’s decisions, nor to judge each other’s activities.93 More recently however, the Trial Chamber issued an unambiguous and strongly worded criticism of the Cambodian Military Court for violating both international and domestic laws.94 Whether the ECCC is described as a “hybrid tribunal,”95 a “domestic court with international assistance”96 or a “special internationalised tribunal,”97 the ECCC is fundamentally obliged to uphold the rights of the Accused, and the Trial Chamber’s view must be preferred as the most logical expression of this duty.

Mandate 62. The ECCC is strictly limited to investigating and prosecuting only those crimes that occurred in the Democratic Kampuchea regime, 17 April 1975 to 6 January 1979.98 This removes from the tribunal’s consideration the American bombing of eastern Cambodia between 1969 and 1973, the extra-judicial torture, detention and execution in Cambodia of “enemies of the revolution” by the Khmer Rouge in the early 1970s before they took power,99 and the involvement of foreign governments in arming and funding the Khmer Rouge in exile in the 1980s and 1990s.100 63. The first category of targets – “senior leaders” – is relatively straightforward and has to date been interpreted as those who were members of the Standing Committee of the CPK, or who held other important positions in the Party.101 64. The definition of “those most responsible” is open to some interpretation. During the debates in the National Assembly, Deputy Prime Minister and head of the government’s Khmer Rouge Tribunal Task Force Sok An described this category as those people who although not senior leaders, committed “atrocious crimes.”102 Interestingly, although he spoke of how no more than ten senior leaders would be prosecuted, and the numbers of those falling under the rubric of “most responsible” would be similarly small (citing the Special

Pre-Trial Chamber Duch Detention Appeal Decision, paragraphs 18 and 19.

Trial Chamber Decision on Duch’s Request for Release, paragraphs 18-21.

See for example Mendez: 2009, 53-95.

Per ECCC Deputy Director of Administration, Knut Rosandhaug: see Consultant’s interview with Tony Kranh and Knut Rosandhaug. 97

Per the Co-Prosecutors’ submissions to the Pre-Trial Chamber in the appeal against Duch’s provisional detention: Pre-Trial Chamber Duch Detention Appeal Decision paragraph 19. 98

Article 1 of the ECCC Law.

Witnesses described an interrogation, torture and execution centre code-named M-13 run by Duch from 1971 until 1975, which the Trial Chamber found “prepared him for his daily work as Deputy then Chairman of S-21.” See paragraphs 115-118 of the Duch Trial Chamber Judgment. Evidence of M-13 was only admitted as part of Duch’s previous character. 100

The Chinese military aid to the Khmer Rouge guerrillas are described in Short: 2004, 406-8, 420-1.

101

See the sections below on case file 002.

102

Speech of Sok An National Assembly Debates 4-5 October 2004.

23 Court for Sierra Leone and how it has interpreted this classification) Sok An stressed more than once how it was for the Co-Prosecutors to determine the exact targets, and neither the United Nations nor the Task Force could “violate the power” of the tribunal by fixing a number in advance. We shall return to these words in due course when we examine the question of political interference. 65. The most comprehensive judicial consideration of the personal jurisdiction of the ECCC to date comes from the Trial Chamber’s judgment against Duch. The original Closing Order drafted by the Co-Investigating Judges had indicted Duch as a “most responsible rather than a senior leader.”103 The Trial Chamber agreed that Duch fell into the category of “most responsible,” drawing upon both United Nations reports and the jurisprudence of other international tribunals to define the term. The judges declined as a result to examine whether Duch was a “senior leader.”104 66. Articles 3 to 8 of the ECCC law lists the crimes that are justiciable before the tribunal. Genocide,105 crimes against humanity106 and grave breaches of the Geneva Conventions of 1949107 are the most well known from their prosecution at other international tribunals. Less well known are the crimes of Destruction of Cultural Property pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict108 and crimes against internationally-protected persons pursuant to the 1961 Vienna Convention on Diplomatic Relations.109 However, whereas there has been no indictment, nor even charging or investigation, for these latter crimes, the “domestic” Cambodian crimes of Homicide, Torture and religious persecution, contrary to the 1956 Penal Code,110 have been considered by separate judicial chambers at the ECCC. 67. The Trial Chamber has already found in Duch’s case that the jurisdictional elements existed for crimes against humanity and grave breaches of the Geneva Conventions as far as Duch is concerned.111 The judges were not able to agree on the issue of the domestic crimes of homicide and torture that had been separately charged, and consequently Duch’s Preliminary Objection

103

Office of the Co-Investigating Judges - Closing Order Indicting Kaing Guek Eav alias Duch, criminal case file number 002/14-08-2006, 8 August 2008, paragraph 129. 104

Duch Trial Chamber Judgment, paragraphs 17-25.

105

ECCC Law Article 4.

106

ECCC Law Article 5.

107

ECCC Law Article 6.

108

ECCC Law Article 7.

109

ECCC Law Article 8.

110

These so-called “domestic crimes” are punishable under ECCC Law Article 3. The four accused in case 002 have also recently been indicted with the crime of religious persecution contrary to the 1956 Penal Code – see Closing Order, Case 002. 111

Duch Trial Chamber Judgment, paragraphs 297-329 and 411-429.

24 requesting that these charges be struck out was successful.112 As at the date of writing, the ECCC Co-Investigating Judges Chamber had recently issued a Closing Order against four senior leaders for genocide as well as for crimes against humanity, grave breaches and the domestic crimes of homicide, torture and religious persecution.113 68. As the Trial Chamber noted, the forms of responsibility pursuant to which an accused may be held individually criminally responsible before the ECCC outlined in Article 29 of the ECCC Law are modelled on similar provisions in the Statutes of the ad hoc tribunals and from customary international law.114 Thus, the planning, instigating, ordering, aiding and abetting and commission of crimes under the tribunal’s jurisdiction attract individual criminal responsibility. The Trial Chamber has also upheld Joint Criminal Enterprise, or “JCE”, as a form of commission of the crimes applicable before the ECCC.115 Command or superior responsibility as defined in international jurisprudence is also punishable,116 and Article 29 also stipulates that acting pursuant to superior orders “shall not relieve the suspect of individual criminal responsibility.” 69. Cambodia abolished the death penalty in 1989.117 The possible sentences at the ECCC are limited to imprisonment between five years to life, with the possibility of a confiscation order against a convicted accused for property acquired unlawfully or through criminal conduct.118 70. The question of amnesty and pardon for suspects under investigation by the ECCC appears in Article 40 of the ECCC Law. This provision is, as the CoInvestigating Judges admitted,119 a direct reference to the case of Ieng Sary,

112

The two international judges reasoned that the statute of limitations for the prosecution of domestic crimes had expired long before Duch was charged with them, and their Cambodian colleagues’ attempts to interpret subsequent Cambodian legislation as granting a power to either retrospectively extend the limitation period or to revive a limitation-barred crime were misconstrued. As convictions may only be based upon the affirmative vote of four judges, the Preliminary Objection was granted. See the Trial Chamber, Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes, the case of Kaing Guek Eav alias Duch, 26 July 2010 (“Duch Preliminary Objection Trial Chamber Decision”). 113

ECCC Press Release 16 September 2010 – Co-Investigating Judges Indict Khieu Samphan, Nuon Chea, Ieng Sary and Ieng Thirith. 114

Duch Trial Chamber Judgment, paragraph 470.

115

Duch Trial Chamber Judgment, paragraphs 487-513.

116

For a detailed discussion of this jurisprudence, see paragraphs 538-547 of the Duch Trial Chamber Judgment. 117

Source: Amnesty International – Abolitionist and Retentionist Countries.

118

ECCC Law, Articles 38 and 39. One Trial Chamber Judge issued a dissenting judgment in the Duch trial on the question of sentence, opining that the ECCC was limited to a maximum determinate sentence of imprisonment is 30 years where no life sentence is imposed: see Separate and Dissenting Opinion of Judge Jean-Marc Lavergne on Sentence, Duch Trial Chamber Judgment, 26 July 2010. 119

ECCC Office of the Co-Investigating Judges - Provisional Detention Order in the case of Ieng Sary, case file number 002/14-08-2006, 14 November 2007, paragraph 11.

25 former DK Minister of Foreign Affairs, who in 1996 had been given a “pardon and amnesty” for his 1979 conviction by the PRT and an amnesty from prosecution under the 1994 Law Outlawing the Democratic Kampuchea Group.120 71. The Pre-Trial Chamber examined the validity of the amnesty and pardon granted to Ieng Sary during its consideration of his appeal against the provisional detention order of the Co-Investigating Judges.121 The Pre-Trial Chamber ruled that the “pardon and amnesty” for the 1979 conviction was of uncertain validity, and that the amnesty for prosecution under the 1994 Law has no relevance to the offences under the jurisdiction of the ECCC.122 It remains to be seen how the judges will resolve these issues when Ieng Sary’s preliminary objections to jurisdiction are heard before the Trial Chamber.

Composition and structure 72. The ECCC is unique in many respects. It is the first UN-backed hybrid tribunal with a majority of national judicial staff. It is also the first such tribunal where there is job-sharing of most senior roles. And unusually for an international or internationalised tribunals, there is neither a Registrar nor a President of the Court. 73. The tribunal operates what has been described as a “complex dual institutional structure”123 whereby Cambodian government-appointed and United Nationsappointed staff work together but often in parallel. The daily functioning of the ECCC is managed by the Department of Administration (“DOA”). The DOA’s mission is described as being “to support and facilitate the judicial process through effective, efficient and coordinated provision of services,” but it is also in charge of relations with the UN, the Cambodian government and the donor community.124 74. Overall management responsibility for the DOA rests with the Director, a Cambodian government-appointed post. A United Nations-appointed Deputy Director is responsible for the recruitment and administration of all international staff.125 The DOA controls a number of (non-judicial) logistical and technical offices within its structure such as personnel, finance, security, and court management. Each of these sections has a “national” and an

120

See ECCC Pre-Trial Chamber Decision on Appeal Against Provisional Detention Order of Ieng Sary case file number 002/19-09-2007 (PTC03), 17 October 2008, paragraph 27; also see Report of the Group of Experts, paragraph 44. 121

ECCC Office of the Co-Investigating Judges - Provisional Detention Order in the case of Ieng Sary, case file number 002/14-08-2006, 14 November 2007. 122

See ECCC Pre-Trial Chamber Decision on Appeal Against Provisional Detention Order of Ieng Sary case file number 002/19-09-2007 (PTC03), 17 October 2008, paragraphs 55-63. 123

International Centre for Transitional Justice (“ICTJ”) report, updated Jul 2010.

124

ECCC website. See in more detail rules 8, 9 and 10 of the Internal Rules.

125

Article 31(new) ECCC Law.

26 “international” side, or more precisely a Cambodian government-appointed contingent and a UN-appointed contingent. Most of the sections have two chiefs (or one chief and one deputy) – one Cambodian government-appointed and one UN-appointed. 75. In relation to the principal judicial offices, it was specified in the ECCC Law that both judges and prosecutors “shall be independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.”126 The judges of the Trial Chamber and Pre-Trial Chamber shall sit as a bench of five, the President and his two Cambodian colleagues being government-appointed, with the remaining two judges UNappointed. The Supreme Court Chamber sits as a bench of seven, with the President and his three Cambodian colleagues being government-appointed, the remaining three being UN-appointed. The Office of the Co-Prosecutors and the Office of the Co-Investigating Judges conduct the prosecution and investigation of suspects respectively. There are two equal Co-Prosecutors, and two equal Co-Investigating Judges, one being Cambodian-government appointed, the other being UN-appointed respectively. Both the Office of the Co-Prosecutors and the Office of the Co-Investigating Judges are staffed with national and international contingents. 76. Given the poor state of Cambodia’s domestic criminal justice system, the potential functioning of the ECCC’s judicial offices gave the Group of Experts the most cause for concern. Two compromises were agreed upon in an attempt to address the fears of manipulation or control by the Cambodian government. 77. The first is the supermajority voting rule for the three main judicial chambers. In decisions of the Trial Chamber127 and Pre-Trial Chamber128 at least four judges must agree. In decisions of the Supreme Court Chamber at least five judges must agree.129 This ensures that there must be at least one internationally appointed judge in agreement with his or her Cambodian government-appointed colleagues for an affirmative decision. However, as a recent report by the Overseas Justice Initiative (“OSJI”) points out, there are very few guidelines to be found in any of the ECCC’s governing or procedural instruments on how the voting system will work. As the OSJI notes, the judges seem to be operating on the understanding that all judicial decisions, great or small, must be by supermajority. The practical result of any supermajority decision however may depend upon whether a particular motion is framed positively or negatively.130 Additionally, although the supermajority rule was conceived of to prevent the conviction of an innocent accused by a simple

126

Articles 10 (new) and 19 ECCC Law.

127

Article 14(1)(a)(new) ECCC Law.

128

Rule 77(13) Internal Rules.

129

Article 14(1)(b)(new) ECCC Law.

130

For example, whether the motion requests the court to preclude or to include the application of a theory of liability. See Overseas Justice Initiative – Political Interference at the Extraordinary Chambers in the Courts of Cambodia, July 2010 (“OSJI July 2010 report”), pp11-13.

27 majority of Cambodian government-appointed judges, the system is ineffective where Cambodian judges wish to block a conviction of an accused against whom there is proper evidence, or a motion which may be unfavourable to the current government.131 The supermajority system can therefore only ever be a partially successful tool to counteract political interference. 78. The second safeguard concerns the resolution by the Pre-Trial Chamber of disagreement between the two Co-Prosecutors and the two Co-Investigating Judges. For all the major decisions to be taken by the Office of the CoProsecutors and the Office of the Co-Investigating Judges, both principals must agree.132 Where no agreement is possible, the Pre-Trial Chamber sits as the official dispute resolution mechanism. There has to date only been one such public deadlock – that between the International Co-Prosecutor (who wished to file an Introductory Submission against an additional five suspects) and the national Co-Prosecutor (who refused). The Internal Rules provide133 that the Pre-Trial Chamber will resolve the disagreement with a hearing in camera where each Co-Prosecutor outlines their position. Unless there is a supermajority decision, the default judgment is that the request shall stand. The procedure is broadly the same for Co-Investigating Judges.134 79. Such a procedure establishes a de facto presumption that where one of the CoProsecutors or Co-Investigating Judges wishes to commence a prosecution or open an investigation, unless there is a supermajority to the contrary, the prosecution or investigations will proceed.135 Although this ensures that any undue political interference upon the Cambodian Co-Prosecutor or CoInvestigating Judge could not de-rail the initial stages of the prosecution or investigation, this cannot ensure that national staff in either office will cooperate or contribute to the work of their international colleagues. Also, the mechanism does not prevent interference at the trial stage where positive motions (or convictions) are sought but blocked by Cambodian governmentappointed judges. 80. Returning to the daily functioning of the various sections of the tribunal, it is clear that the parallel administrative structure reveals additional complications. Having a “Cambodian” and an “international” side for the respective Personnel sections of the court is operationally feasible, as UN and Cambodian government-appointed staff are hired separately. However, in the judicial offices, where the work output is unified and there is only one end

131

See ECCC Pre-Trial Chamber Second decision on Nuon Chea's and Ieng Sary's appeal against OCIJ order on request to summons witnesses, 002/19-09-2007-ECCC-OCIJ (PTC) 9 September 2010 (“Pre-Trial Chamber Split Decision on Interference Investigation”). 132

Rules 71(3) and 72(3) Internal Rules.

133

Rules 13(5), 71 and 77(13) Internal Rules.

134

Rules 14(7), 72 and 77(13) Internal Rules.

135

This is in fact what happened with the dispute in question between the Co-Prosecutors: see Pre-Trial Chamber Decision on Co-Prosecutors’ Disagreement.

28 product, the differing capabilities of international and national staff are exposed, not to mention the differing agendas. 81. During the Consultant’s interviews with senior staff from the Office of the CoProsecutor and the Trial Chamber, for example, the difference in legal drafting ability was underlined as the major discrepancy between the UN and Cambodian government-appointees.136 As the current International CoProsecutor explained, although he had a good relationship with his Cambodian counterparts, it is “not a relationship of equality” and the international staff does most of the drafting work. Similarly, in the defence teams for individual accused, usually comprising one national and one international lawyer, the legal drafting is exclusively by the latter rather than the former.137 This is perhaps only to be expected. More encouragingly, all International Judges interviewed explained that despite their Cambodia colleagues’ lack of prior experience of long and complex investigations, they have been impressed with the intellectual rigour and level of debate.138 82. Some units and sections have pursued their own approach to a mixed national/international composition. In the Defence Support Section (“DSS”), the autonomously budgeted and -administered unit established to assist suspects with legal representation at the tribunal, there is no senior Cambodian staff member. The current Head of the DSS explained the reason for this. During the first two years of the ECCC’s operations, there were allegations being made of kickbacks and irregularities in recruitment affecting Cambodian personnel.139 The first Head of the DSS, in consultation with the individual defence teams, decided against initially recruiting a Cambodian deputy head of the office as it was considered this would compromise its independence and integrity.140 83. Even in a hybrid tribunal with a majority national judicial presence, considerations of independence and integrity must take priority over capacity building.141 Each individual accused has the right to select two counsel of his or her choosing, one of which at least must be Cambodian, but both of which

136

Consultant’s interview with International Co-Prosecutor Andrew Cayley and with International Reserve Trial Chamber Judge Claudia Fenz. 137

From the Consultant’s conversations with various defence teams, in particular Consultant’s interview with Geoffrey Roberts, email responses 21 September, 2010.

138

Consultant’s interview with International Trial Chamber Judges Silvia Cartwright and Claudia Fenz; Consultant’s interview with International Pre-Trial Chamber Judge Rowan Downing. 139

See below.

140

Consultant’s interview with Richard Rogers, Head of the DSS – although now that the allegations have been investigated to the satisfaction of the UN, the recruitment process for a deputy head will commence. 141

Rule 11 of the Internal Rules deals sets out the remit of the DSS. This was one of the most problematic rules to negotiate. Initially, the Bar Association of Cambodia and many of the national judges opposed the very existence of the DSS: see First Plenary Press Release.

29 have equal “co” status. This has worked better in some teams than in others.142 A strong defence is of course essential to the proper functioning of any tribunal, and in many ways the lessons of the Special Court for Sierra Leone’s Defence Office143 have been learned by the DSS at the ECCC, which by all accounts has functioned exceptionally well.144 Relations between the DSS and the Bar Association of Cambodia have not been as propitious.145 84. In contrast, the Witness and Expert Support Unit (“WESU”) is predominantly staffed by Cambodian nationals. Responsible for the protection, welfare and support of, those who give testimony before the ECCC,146 the current international head of the section (who has considerable experience at other international tribunals), described how her staff are the equal of anyone she has ever worked with. WESU played a critical part in the recent trial of Duch, liaising with the Cambodian NGO, the Transcultural Psycho-social Organisation (“TPO”) to provide support to the witnesses and also the Civil Parties who testified at trial. In the words of WESU’s chief, “the services [we] provided were not bettered by any other court in the world.”147

Procedure 85. The ECCC Agreement and Law stipulate that the tribunal shall operate in accordance with existing Cambodian procedural law, but that it shall exercise its jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights.148 Guidance may also be sought at the international level where existing procedures are silent, uncertain or inconsistent with international standards.149

142

As we shall discuss when examining the conduct of the Duch trial.

143

The Special Court’s Defence Office was hampered through having no budget autonomous of the Registry. See Bates: 2010, paragraphs 174-180. 144

Email from François Roux, received 29 September, 2010 (copy on file with Consultant). One ECCC defence expert with considerable experience of other tribunals remarked that there was a “[v]ery good working relationship with DSS which was the best Defence Office/Section I have worked with. I felt that DSS had the interests of the Defence teams in mind when making decisions and acted for us rather than against us which happens elsewhere.” See Consultant’s interview with Geoffrey Roberts, email responses 21 September, 2010. 145

One international defence counsel’s requests to meet with the President of the Bar Association of Cambodia were repeatedly rejected: email from François Roux, received 29 September, 2010. 146

ECCC website.

147

Consultant’s interview with Wendy Lobwein.

148

International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976 (the “ICCPR”). 149

ECCC Agreement, Article 12; ECCC Law, Article 33 (new).

30 86. For over fifteen years, these “existing procedures” have been unclear and pieced together from a combination of the old UNTAC law of 1992150 and the State of Cambodia Law of Criminal Procedure 1993.151 Cambodia only recently passed a comprehensive Criminal Procedure Code in September 2008, which as yet is not well known or used domestically. Unsurprisingly, the judges of the ECCC have made extensive reference to international procedure in their decisions and judgments to date. 87. Additionally, the ECCC has adopted its own distinct Internal Rules with the intention of “consolidating applicable Cambodian procedure in relation to proceedings before the ECCC.”152 The negotiations of the Internal Rules were complex and difficult153 and took over seven months but were finally adopted and came into force on 12 June 2007. There have been six subsequent revisions of the Internal Rules, the latest as at the date of writing this report have been in force since 15 September 2010.154 88. Cambodia’s domestic criminal procedure follows a French-inspired civil law tradition. The ECCC is similarly influenced, as detailed in the Internal Rules which sets out the framework in which investigations, trials and appeals are conducted and the principles to be applied. 89. Prosecutions may only be initiated by the Co-Prosecutors155 who conduct a brief preliminary investigation.156 Once they have reason to believe that crimes within the jurisdiction of the ECCC have been committed, they must request that the Co-Investigating Judges open a judicial investigation against either named or unnamed suspects. The Co-Prosecutors must also then transfer their case file and evidence to the Co-Investigating Judges.157 All decisions from then on until the case is heard at trial are taken by the Co-Investigating Judges. They have the sole authority to charge suspects with offences, to conduct investigations into these offences, to impose provisional detention and to issue an indictment (the “Closing Order”) against Charged Persons.158

150

Provisions Relating to the Judiciary and Criminal Law Applicable in Cambodia During the Transitional Period, Decision of the Supreme National Council of Cambodia, 10 September 1992. 151

State of Cambodia Law of Criminal Procedure 8 March, 1993.

152

Duch Trial Chamber Judgment, paragraph 35, citing the fifth paragraph of the Preamble of the Internal Rules. 153

See ECCC Joint Press Release by the National and International Judicial Officers at the conclusion of the first Plenary Session for the Internal Rules, 25 November 2006 (“First Plenary Press Release”), noting four key areas of substantive disagreement between Cambodian and UN-appointed judicial officers. 154

Revision 6 of the Internal Rules.

155

Rule 49, Internal Rules.

156

Rule 50, Internal Rules.

157

Rule 53(1) and (2).

158

See, variously, rules 55(4), 55(5), 63 and 67 of the Internal Rules.

31 90. The Co-Investigating Judges’ judicial investigation is a confidential process. Their ultimate duty is to “take any investigative action conducive to ascertaining the truth” and to explore both incriminating and exculpatory evidence.159 All official actions in the judicial investigation are recorded in the case file, which may be examined by all parties to the proceedings. Parties are not entitled to conduct their own investigations into the particular facts under examination. Instead, they must submit justified requests to the CoInvestigating Judges. Ultimately, the Co-Investigating Judges rule upon whether and when a judicial investigation has been concluded, and although they request the Co-Prosecutors to provide their written “final submission” requesting an indictment or dismissal, it is the Co-Investigating Judges themselves who also draft the Closing Order indicting the Accused, whose cases are then sent to the Trial Chamber.160 91. The Co-Investigating Judges control and dictate this initial phase of the case the investigation, a procedure that is entirely alien to lawyers from a common law background. A lesser role for prosecutors is also apparent at the public trial phase. Although the Co-Prosecutors bear the burden of proving the guilt of an accused beyond a reasonable doubt,161 the Judges take the lead in questioning all witnesses and the accused, and technically, if a party wishes to ask a question they must do so with the permission of the President of the Trial Chamber.162 92. There are two appellate chambers at the ECCC. Additional to its dispute resolution function, the Pre-Trial Chamber’s appellate jurisdiction is largely to determine appeals of the orders of the Co-Investigating Judges.163 The Supreme Court Chamber determines appeals from the Trial Chamber, the scope of which shall be limited to the issues raised in the parties’ notices of appeal or to the status of an appellant. The Supreme Court’s decisions are final.164

Funding 93. The funding of the ECCC has been problematic and uncertain since the court began its operations.165 Initially, the court was budgeted to last three years and to cost US$56.3 million.166 Given the experiences of the other international and internationalised tribunals, both estimates appeared unreasonably short even at the very beginning of the court’s operations. Four years on, with the

159

See rule 55(5) of the Internal Rules.

160

Rules 66 and 67, Internal Rules.

161

Rule 85(1) of the Internal Rules.

162

Rule 90 of the Internal Rules.

163

Rules 73, 74 and 76 of the Internal Rules.

164

Rules 104(3) and 110(1) of the Internal Rules.

165

See, generally Kamhi: 2007, pp 581-591; Ingadottir: 2006.

166

Ford: 2010, 23.

32 ECCC having spent nearly double the initial estimate and with no end to the final appeals predicted before 2015, the original plans seem naïve at best. A recent article suggested that by the time the ECCC concludes its operations in 2015, the total cost will have been close to $338 million.167 94. A single annual budget is prepared each year, but responsibilities in meeting it are, like the composition and structure of the tribunal, divided between the United Nations and Cambodian government responsibility.168 For the UN, the ECCC is considered a discrete “project” and is financed not through the assessed contributions of all member states169 but through a UN-administered trust fund. This trust fund is supplemented by additional funds from voluntary donors.170 The Cambodian side of the budget is to be met directly by the Cambodian national budget, but right from the very beginning the government declared that it did not have sufficient funds and would therefore seek external donations.171 95. Both the UN and the Cambodian government have experienced real difficulties in securing sufficient contributions, which they attempt to do through staging donor pledging conferences. Ambassadors and senior diplomatic staff from a number of Phnom Penh-based national embassies, the so-called Friends of the ECCC, are also heavily involved in attempting to secure funds.172 Funding for the ECCC is therefore on a somewhat ad hoc basis, with donations not guaranteed from individual state donors year on year. 96. The resultant uncertainty and instability has not been helped by allegations of corruption and financial mis-management, on both sides of the court. The United Nations Development Programme originally administered the donations to the Cambodian side of the court, but recently ended their cooperation.173 Reports that junior Cambodian-appointed ECCC staff were required to pay “kick-backs” to senior staff, and complaints that the nepotism dominated the Cambodian recruitment process were so serious that third party investigation and audits were demanded by the donors and at one stage threatened to de-rail the entire process,174 as we shall examine below.

167

Ford: 2010, 23.

168

Article 44 (new) of the ECCC Law states that the expenses and salaries of the Cambodian administrative officials shall be borne by the Cambodian national budget, whereas the expenses and salaries of the foreign administrative officials shall be borne by the United Nations. 169

Unlike the funding for the ad hoc tribunals: see, generally, Ford: 2010.

170

Kamhi: 2007, 583.

171

Kamhi: 2007, 584.

172

See, for example, references in ECCC Press Releases to the work of the Friends of the ECCC – Ninth Meeting of the Friends of the ECCC, 30 November 2007. 173

OSJI – Recent Developments at the Extraordinary Chambers in the Courts of Cambodia March 2010 Update, page 12.

174

OSJI – Recent Developments at the Extraordinary Chambers in the Courts of Cambodia October 2008 Update.

33 97. Less critical, but still of real concern, was the fact that in December 2009 the court was required to pay back a US$340,000 donation by the Organisation German Technical Cooperation, GTZ, to the former Victims Unit because the money had not been allocated in accordance with the terms of the grant under which it was given. According to the OSJI, this was because the ECCC’s Office of Administration had been reluctant to authorise spending on victims’ issues “because of the court’s overall budget concerns.”175 98. Discussing these issues with the Director and Deputy Director of Administration, both admitted that the operation of the court had been negatively affected by the voluntary funding arrangements. They pointed to a two and a half month period in mid 2010 when there were no funds to pay Cambodian staff; to low morale; and to reduced productivity.176 The Deputy Director added that although he agreed that donors needed some control over how their money was being spent, the level of this control was too restrictive. 99. As the OSJI remarked in their latest ECCC report from September 2010, an adequate and stable budget is critical to the success of the court as it permits the recruitment and retention of quality staff who will ensure that it operates efficiently and according to international standards.177 The latest information for the 2010-2011 budget show funding shortfalls for both the UN and the Cambodian side.178 The current global economic crisis is also affecting longstanding donors such as Japan, who have recently announced that they will be substantially cutting back their contributions.179 It appears that the financial troubles that have consistently plagued the ECCC show no sign of abating.

175

OSJI Report September 2010, page 13.

176

Consultant’s interview with Tony Kranh and Knut Rosandhaug.

177

OSJI Report – Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, September 2010 Update, page 8.

178

According to a recent report quoting Cambodian government minister Chan Thani, the UN side was facing a funding shortfall of $6.4 million for the rest of 2010 and a shortfall of $29.8 million for 2011, whereas the Cambodian side was short $1 million for 2010 and more than $7 million for 2011 (Voice of America Khmer News – Sok An, Donors Meet Over Tribunal Funding Woes 7 September 2010. 179

Email from the ECCC’s Department of Administration, 20 September 2010, copy on file with the Consultant.

Past cases and current status of ECCC activity Initial Investigations and Introductory Submission 100. Notwithstanding the delay of nearly thirty years since the events, the Co-Prosecutors were not short of evidence and information to commence their preliminary investigations.180 The Documentation Centre of Cambodia (“DCCam”) had amassed and preserved hundreds of thousands of pages of documents from the Khmer Rouge era. They had also set about interviewing witnesses, victims and former perpetrators.181 Another archive of DK-related papers was held at the Tuol Sleng Museum at the former S-21 prison in Phnom Penh. Activists, scholars and historians had already examined sections of the evidence,182 but the Co-Prosecutors were required to start afresh to build their theory of liability for crimes that covered the whole country for the entire duration of the regime. 101. The decision was taken within the Office of the Co-Prosecutor (“OCP”) that no official filings could be made unless and until the Plenary of Judges had approved the ECCC’s Internal Rules.183 The Internal Rules came into force in June 2007 and the following month the OCP filed the first Introductory Submission, requesting the Co-Investigating Judges to open a judicial investigation against five suspects184 for genocide, crimes against humanity, grave breaches of the Geneva Conventions, and crimes against the 1956 Penal Code of Cambodia.185 102. The Co-Prosecutors transmitted more than 1,000 documents constituting over 14,000 pages, including statements or written records of over 350 witnesses, a list of 40 other potential witnesses, thousands of pages of Democratic Kampuchea-era documentation and the locations of over 40

180

The Cambodian-government appointed staff had been in place since June-July 2006, with their international colleagues arriving individually over the ensuing few months. 181

According to its website, DC-Cam is an “independent and nonpartisan institute” that has been conducting “impartial inquiry into facts and history of the Khmer Rouge period” for more than ten years: http://www.dccam.org/Abouts/History/Histories.htm. 182

To name a few: David Hawk and Hurst Hannum’s presentation to the International Court of Justice – as discussed in Etcheson: 2005, 131-2; David Chandler’s research of thousands of DK-era “confessions” of supposed traitors extracted under torture at S-21 (which he later used as the basis for his book Voices from S-21); Heder and Tittemore: 2004. 183

A cautious approach was also taken to the interviewing of potential witnesses and official evidencegathering missions for a similar reason (personal knowledge of the Consultant). 184

In fact, there were originally six suspects proposed for investigation, but on the very day of the proposed filing of the Introductory Submission the national Co-Prosecutor insisted that the evidence in relation to the sixth suspect did not satisfy the “reason to believe” criterion and this sixth suspect’s name and linking evidence was removed from the document. See paragraph 8, Opinion of Judges Prak Kimsan, Ney Thol and Hout Vuthy, Pre-Trial Chamber Decision on Co-Prosecutors’ Disagreement. 185

Introductory Submission dated 18 July 2007, copy on file with the Consultant.

35 undisturbed mass graves. These documents were digitalized and indexed in a database.186 103. The five suspects were arrested, charged and detained by the CoInvestigating Judges namely Nuon Chea, Ieng Sary, Ieng Thirith and Khieu Samphan and Kaing Guek Eav alias Duch.187 Upon becoming “Charged Persons” all five appealed the Co-Investigating Judges’ orders for their provisional detention to the Pre-Trial Chamber. Their appeals were rejected and the judicial investigation continued whilst they remained in detention in a specially constructed detention centre within the grounds of the ECCC compound. 104. In September 2007, the Co-Investigating Judges issued an order dividing the judicial investigation into two case files. “Case 001” consisted of the allegations against Duch alone in relation to S-21, DK’s most important torture and execution centre, based in Phnom Penh. “Case 002” was essentially all the other criminal conduct committed across the whole country for the entirety of the DK regime against all five Charged Persons. There were no appeals of this Separation Order, and the cases were from that point onwards always investigated separately. It was considered that case 001 would be much simpler and shorter than 002, and a good “first test” of the trial process at the ECCC.188

Case 001 105. A former mathematics teacher, Kaing Guek Eav joined the Khmer Rouge and took the revolutionary name “Duch.”189 The senior leaders of the CPK quickly identified his intellect and aptitude and he was promoted to security work.190 Once the Khmer Rouge seized power in 1975, Duch was heavily involved in the development and planning of what became known as S-21, Democratic Kampuchea’s most important secret security centre. First as Deputy then as Chairman of the prison, Duch presided over the detention, torture and execution of more than 12,272 victims191 suspected of being enemies of the revolution, including several hundred captured Vietnamese soldiers and civilians. Duch was also responsible for the re-education site at Prey Sar known as S-24 and the “killing fields” at Choeung Ek.

186

ECCC website: accessed at http://www.eccc.gov.kh/english/ocp_core_activities.aspx.

187

See ECCC Press Release – Statement of the Co-Prosecutors 18 July 2007.

188

From the Consultant’s own knowledge from working at the OCP.

189

For a more detailed biography of Duch, see Dunlop: 2006.

190

Duch had run a Khmer Rouge security centre codenamed M-13 between 1971 and 1975 in the “liberated” zones, where he undoubtedly would have learned his interrogation and organisational skills so effectively implemented at S-21 – see paragraphs 115-118 of the Duch Trial Chamber Judgment. 191

Paragraph 597, Duch Trial Chamber judgment. The actual total number of victims is likely to have been higher by several thousand, but some of S-21’s records were destroyed or lost.

36 106. When the Vietnamese toppled the DK regime, Duch fled with his Khmer Rouge comrades and lived a life in exile until he returned to northwestern Cambodia under an assumed name to work for missionary NGOs. His true identity was only exposed in 1999, and soon afterwards the Cambodian authorities arrested him. He was detained and subjected to an investigation that was never completed by the Military Court of Phnom Penh until he was transferred to the custody of the ECCC in July 2007. 107. S-21 was a straightforward case by the standards of international war crimes trials. From the earliest hearings in camera before the Co-Investigating Judges, Duch was both a cooperative and extremely talkative accused. He readily accepted that he had been the Chairman of S-21. He never disputed the number of victims that had been tortured and executed under his leadership at the prison. The central area of dispute centred around his claim that he was an unwilling participant in the regime’s security work who would have been executed had he not done as he was told. In contrast, the Co-Prosecutors argued that he was an enthusiastic and meticulous prison chief, who had tirelessly hunted down enemies in the knowledge that they would be tortured and executed under his command at S-21. 108. The judicial investigation took a little over a year, the Co-Investigating Judges indicting Duch in their Closing Order of 8 August 2008 on charges of crimes against humanity and grave breaches of the Geneva Conventions.192 The Co-Prosecutors filed an appeal requesting that Duch also be indicted for the domestic offences of Homicide and Torture contrary to the 1956 Penal Code, and that joint criminal enterprise (“JCE”) be included as an additional form of liability. The Pre-Trial Chamber issued its decision on 5 December 2008, granting the Co-Prosecutors’ first request but denying the second.193 109. Duch’s trial began on 30 March 2009. The trial got off to a slow start. There were various problems: the unfamiliarity of court and documentary procedure; the occasional poor quality of interpretation; the often repetitious and irrelevant questioning from Civil Party lawyers; the lack of continuity of prosecution familiar with the case. Nevertheless, observers were almost unanimously of the view that the judges had grown in competence in regulating the hearings, that the trial was indeed conducted according to international fair trial standards and that there had been no evidence of political interference.194 110. Civil Party participation was widely held as adding an extremely important dimension to the trial.195 Ninety victims participated as putative

192

ECCC – Office of the Co-Investigating Judges, Closing Order, Case 001.

193

ECCC – PTC Decision on Appeal against Closing Order indicting Kaing Guek Eav alias Duch, Case 001/18-07-2007-ECCC-PTC, 5 December 2008 (“Case 001 Closing Order”).

194 195

See OSJI Report July 2010, p13

See Staggs-Kelsall et al: 2009, 6, 43-44; OSJI September 2010 Report; OSJI – Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, November 2009 update (“OSJI November 2009 Report”), pp2, 8-10.

37 Civil Parties, 22 of whom gave evidence. The Civil Parties were divided into four groups based on the originated source of their application. Each group had both national and international lawyers. They presented a unified request for reparations at the end of the trial that included the building of memorials, education and medical care for victims and the publication and dissemination of the judgment.196 111. One particularly dramatic event occurred in the final days of closing arguments.197 The Defence had largely been adopting a low-key strategy, conducting the trial as if it were an extended guilty plea. Duch constantly expressed his remorse and his “legal and emotional responsibility for all the crimes committed at S-21.” François Roux, international Defence Counsel, had called witnesses to explain the meaning and nature of reconciliation and had explored the issues of forgiveness and rehabilitation, with a view to requesting a lenient sentence. Up until the penultimate day, national Defence Counsel Kar Savuth had largely been in step with this strategy. When Mr Kar gave his closing address, however, he argued that the ECCC had no jurisdiction to try Duch (as he was neither senior leader nor most responsible) and that he should be acquitted and released immediately. François Roux’s speech attempted to interpret his colleague’s address as meaning that Duch should be released on the basis of time served, but the judges requested clarification from Kar Savuth who confirmed that he was indeed asking for an acquittal. Ultimately, Duch was asked by the Trial Chamber to choose whether he was asking for an acquittal or not. Duch sided with his national lawyer, to leave his request for forgiveness looking hypocritical. 112. This “schism” in the defence was widely reported in the Press. After the trial had concluded, Maitre Roux remarked that he was “extremely concerned” and “very saddened” by what had happened. He added that it was surely a mistake to have two co-lawyers and a lead counsel system would have been far better.198 113. After 22 weeks of substantive hearings, the trial concluded on 17 September 2009 and final submissions were delivered in the week of 23-27 November 2009. 38 witnesses of fact and 9 experts had given evidence.199 114. The Trial Chamber returned its judgment on 26 July 2010.200 Duch was unanimously convicted of crimes against humanity (persecution on political grounds, subsuming the crimes of extermination, murder, enslavement, imprisonment, torture – including one instance of rape – and other inhumane

196

For a full review of the trial, see Staggs-Kelsall et al: 2009.

197

See Duch Trial Chamber transcripts, November 26, 27, 2009, accessed online at www.eccc.gov.kh.

198

Email received by François Roux, 29 September, 2010, copy on file with the Consultant; also see variously Cruvellier: 2009; Wallance: 2009; and Carmichael 2010, all accessed online at www.cambodiatribunal.org. 199

Staggs-Kelsall et al: 2009.

200

Duch Trial Chamber Judgment.

38 acts) and grave breaches of the Geneva Conventions (wilful killing, torture and inhumane treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving a prisoner of war or civilian of the rights of a fair and regular trial, and unlawful confinement of a civilian). There was no supermajority for the 1956 Penal Code offences, so he was acquitted of these charges.201 The Trial Chamber rejected counts of physical perpetration,202 but convicted Duch of committing the offences through membership of a JCE,203 and by planning,204 instigating,205 ordering206 and aiding and abetting.207 In line with international jurisprudence prohibiting simultaneous convictions for direct participation and for superior responsibility, the latter mode of liability was only considered in respect of sentencing.208 115. By a majority,209 Duch was sentenced to 35 years. This was reduced by 5 years as compensation for the breach of his fair trial rights in the Military Court,210 and he was credited for the 11 years he had spent in custody before the verdict, leaving an additional 19 years to serve.211 The Trial Chamber rejected 24 of the 90 Civil Party applicants either because they had failed to satisfy the Chamber that they were immediate victims or related to immediate victims of S-21 or S-24. The Trial Chamber rejected the vast majority of the reparation requests on the basis that Duch was indigent, the requests were imprecise and unquantified and/or the ECCC had no authority to order a third party to provide funds. The sole reparation granted was the compilation of all Duch’s statements of apology and acknowledgements of responsibility during the course of the trial and the publication of this compilation on the ECCC’s website.212

201

In response to a Defence Preliminary Objection that the statute of limitations had expired for the 1956 offences, the Cambodian government appointed judges rejected the arguments whereas the UNappointed judges acceded. See Duch Preliminary Objection Trial Chamber Decision (above). 202

Duch had been accused of personally torturing and beating certain detainees. The Trial Chamber rejected the evidence on this as inconsistent: Duch Trial Chamber Judgment paragraphs 480-486. 203

Duch Trial Chamber Judgment paragraphs 487-517.

204

Duch Trial Chamber Judgment paragraphs 520-521.

205

Duch Trial Chamber Judgment paragraphs 525-526.

206

Duch Trial Chamber Judgment paragraphs 529-531.

207

Duch Trial Chamber Judgment paragraphs 536-537.

208

Duch Trial Chamber Judgment paragraphs 538-549.

209

Judge Lavergne stated that the Trial Chamber was limited to a maximum determinate sentence of imprisonment is 30 years where no life sentence is imposed: see Separate and Dissenting Opinion of Judge Jean-Marc Lavergne on Sentence, Duch Trial Chamber Judgment, 26 July 2010. 210

Trial Chamber Decision on Duch’s Request for Release; also paragraphs 623-628 Duch Trial Chamber Judgment. 211

Paragraphs 631-633, Duch Trial Chamber Judgment.

212

Paragraphs 635-675 and 682-683 Duch Trial Chamber Judgment.

39 116. The judgment received a mixed reaction. The Consultant interviewed victims and members of civil society only two weeks after the judgment was published and emotions were still running understandably high. Three issues attracted strong criticism: the perceived lenient sentence;213 the timing of the rejection of 24 Civil Party applicants;214 and the lack of substantial reparations.215 Many of the harshest reactions, unsurprisingly, came from villagers in the provinces.216 However, the Cambodian government made a somewhat surprising statement in the light of comments it has made in relation to other decisions of the court. Prime Minister Hun Sen has been quoted as saying “I respect the verdict handed down by the court. The government has no right to interfere or put any pressure on the court.”217 117. As at the date of writing, two months from the judgment, there are signs that the anger is dissipating.218 Perhaps this is due to the fact that a number of prominent civil society groups have attempted to explain certain elements of the judgment,219 or simply to the passage of time. Certainly the impact of the case will not be known until after the final determination of the appeal by the Supreme Court Chamber. As at the date of writing, all parties have notified their intention to appeal the Trial Chamber judgment,220 but no hearing date has yet been set.

Case 002 118. The investigation into what is now known as case 002 has recently concluded, the Co-Investigating Judges issuing their Closing Order in September 2010.221 The final four surviving former senior leaders of the CPK have been indicted: Nuon Chea, former Deputy Secretary of the Central Committee of the CPK, and Pol Pot’s number two; Khieu Samphan, former DK President; Ieng Sary, former Minister of Foreign Affairs; Ieng Thirith, former Minister of Social Action. All are in their late 70s or early 80s, most

213

Consultant’s interviews with Chum Mey (6 August 2010), Seng Theary (6 August 2010), Panh Rithy (9 August 2010), Hang Chhaya (13 August 2010).

214

Consultant’s interview with Silke Studzinsky and Christoph Sperfeldt / Oeung Jeudy.

215

Consultant’s interviews with Ou Virak, Ang Chanrith.

216

Documentation Centre of Cambodia: July 26, 2010. The reporters described how one woman in a village they visited “… said that she thinks Duch should be tortured. In gruesome terms, she said that Duch’s flesh should be torn, bit by bit, and that salt should be added to his wounds” p33. 217

OSJI Report September 2010, p9.

218

OSJI Report September 2010, p4.

219

Documentation Centre of Cambodia: September 2010.

220

ECCC Press Release – Statement of Co-Prosecutors, 16 August 2010; BBC World News – Khmer Rouge Jailer Submits Appeal, August 25, 2010; Phnom Penh Post – KRT Civil Parties Plan Appeal, August 24, 2010. 221

ECCC – Office of the Co-Investigating Judges, Closing Order 15 September 2010. The CoInvestigating Judges dismissed the case against Duch, who had also originally been investigated and interviewed as part of case 002.

40 are in poor health. They have all been detained at the ECCC’s detention facility for almost three years. 119. To quote international Co-Investigating Judge Marcel Lemonde, the facts of this case make it arguably the most complex investigation since Nuremberg.222 The four accused are indicted for genocide (against the Cham Muslim and Vietnamese minorities), crimes against humanity, grave breaches of the Geneva Conventions, and crimes contrary to the 1956 Penal Code. The allegations cover the entire period of the DK regime, and relate to the authority the accused wielded over the entire country through their official positions as members of the Standing Committee of the CPK (or in Khieu Samphan’s case, as the President of Democratic Kampuchea) and planning, implementation and enforcement of CPK policy. This policy included the forcible transfer, enslavement, murder, torture and other inhumane treatment of the civilian population. Further, in the course of an international armed conflict with Vietnam, captured Vietnamese civilians and soldiers were unlawfully imprisoned, tortured and executed in contravention of the protections of the Geneva Conventions.223 The Closing Order has also granted civil party status to 2,123 (out of 3,988 applicants) victims.224 120. Apart from in a handful of early interviews, all four accused have refused (as is their right) to answer detailed questions from the CoInvestigating Judges. They each deny all the offences, although all have given statements to journalists and researchers over the years, and some have even written tracts about what they did and did not know.225 121. The judicial investigation was long and hard-fought. Many legal, political and operational issues that have arisen since the ECCC’s operations began have been cited in motions by the various vigorous and vocal defence teams. Allegations that investigators have been biased,226 requests for dismissal of judges227 or annulment of judicial actions,228 complaints of

222

See Gillison: 2010.

223

See ECCC – Office of the Co-Investigating Judges Closing Order indicting Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, 15 September 2010, case file 002/19-09-2007-ECCC-OCIJ (“Case 002 Closing Order”). 224

ECCC press release of 16 September 2010

225

Case 002 Closing Order – see in particular the case against Nuon Chea (paragraphs 862-993), Khieu Samphan (paragraphs 1126-1200), Ieng Sary (paragraphs 994-1125) and Ieng Thirith (paragraphs 1201-1298), 15 September 2010. 226

Appeal of Ieng Sary Against the Office of Co-Investigating Judge’s decision on the Defence Request for Information Concerning the Apparent Bias and Potential Existence of Conflict of Interest of Office of Co-Investigating Judge legal officer David Boyle, case 002/19-09-2007-ECCC-OCIJ (PTC) 6 June 2008.

227

Application for Disqualification of Judge Marcel Lemonde, 002/19-09-2007-ECCC-OCIJ (PTC04) 29 October 2009. 228

Khieu Samphan’s Request for Annulment for Abuse of Process, 002/19-09-2007-ECCC-OCIJ (PTC) 27 August 2009; Ieng Sary’s expedited appeal against the OCIJ’s decision refusing to accept the filing

41 investigative unfairness229 and breach of translation rights230 are somewhat standard motions in war crimes trials. A legal challenge to the constitutionality of the court can also be expected at trial. But given the damaging allegations of political interference and corruption that have been levelled at the ECCC and the Cambodian government,231 there is more material for the defence to file preliminary motions than is usually available in international tribunals. The defence teams in case 002 have not wasted the opportunity to make vigorous and sustained challenges on the very existence of the court. 122. There is to date no indication whether the Co-Prosecutors will appeal the Closing Order.232 In any event, the public trial is unlikely to commence before mid-2011. Estimates of the length of trial are very difficult at this stage without a clear idea of the number of witnesses requested by the parties. The Trial Chamber’s daily sitting hours will also be limited by the age and infirmity of the accused, who will require regular breaks throughout the day. It is also reasonable to assume that there will be defence motions that some or all of the accused are unfit to stand trial.233 The trial could last at least eighteen months.

Cases 003 and 004 123. From the only publicly available information,234 case file 003 contains a request for the Co-Investigating Judges to investigate eight “distinct factual situations of murder, torture, unlawful detention, forced labour and persecution [which]... if proved, would constitute crimes against humanity, grave breaches of the Geneva Conventions and violations of the 1956 Cambodian Penal Code.” Case file 004 contains a request for the CoInvestigating Judges to investigate thirty-two “distinct factual situations of murder, torture, unlawful detention, forced labour, and persecution [which] ... if proved, would constitute crimes against humanity, violations of the 1956 Cambodian Penal Code and genocide.” The names of the five suspects and the locations remain confidential.

of Ieng Sary’s response to the Co-Prosecutors’ Rule 66 Final Submission and additional observations, and request for stay of the proceedings, 002/19-09-2007-ECCC-OCIJ (PTC), 6 September 2010. 229

Letter of Nuon Chea’s Lawyers on Lack of Confidence in the Judicial Investigation, 002/19-092007-ECCC-OCIJ (PTC) 15 October 2009.

230

Defence Appeal Against the Decision To Deny the Request For Translation of Khieu Samphan’s Case File, case 002/19-09-2007-ECCC-OCIJ, 22 July 2008.

231

Which we will discuss below.

232

Neither the Defence nor Civil Parties are entitled to appeal the substance of the Closing Order: rule 74, Internal Rules. 233

Some defence teams have already argued that their clients are unfit to stand trial as part of their appeals against provisional detention. See for example Decision on Ieng Sary’s Appeal Regarding the Appointment of a Psychiatric Expert case 002/19-09-2007-ECCC-OCIJ, 21 October 2008. 234

A Press Release from the Acting International Co-Prosecutor: ECCC Press Release - Acting International Co-Prosecutor requests investigation of additional suspects, 8 September 2009.

42 124. These two additional cases have been at the unilateral request of the international Co-Prosecutor, as the national Co-Prosecutor did not agree that further suspects should be investigated.235 This disagreement was sent to the Pre-Trial Chamber under the dispute resolution mechanism under rule 71 of the Internal Rules.236 Under this rule, the pleadings and arguments are heard in camera. 125. The redacted version of the Pre-Trial Chamber’s decision details the scope of the disagreement and the reasons behind it. The Pre-Trial Chamber voted along national/international lines: three Cambodian judges supported the position of the national Co-Prosecutor and voted to block the further introductory submissions for the additional five suspects,237 whereas the two international judges voted to permit the international Co-Prosecutor to proceed with these investigations.238 In the absence of the required supermajority ruling, the default position applied under the Internal Rules239 and the Cambodian Co-Prosecutor’s objection to the proposed additional Introductory Submission was not sustained. The Acting International Co-Prosecutor duly filed this additional Introductory Submission on 7 September 2009.240 126. There has been similar disagreement within the Office of the CoInvestigating Judges in relation to the investigation of the two new disputed case files. An ECCC Press Release outlined the nature of the dispute between the national and international Co-Investigating Judges.241 There had apparently

235

The Reasons given by the national Co-Prosecutor for not wishing to proceed on the new investigations were threefold: “(1) Cambodia’s past instability and the continued need for national reconciliation, (2) the spirit of the agreement between the United Nations and the Government of Cambodia (“Agreement”) and the spirit of the law that established this Court (“ECCC Law”), and (3) the limited duration and budget of this Court. [the national Co-Prosecutor] feels that this Court should instead prioritize the trials of the five suspects already detained, especially when, according to her, the Agreement and the ECCC Law envisioned only a small number of trials. She maintains that this Court’s mandate can be adequately fulfilled by the prosecution of the suspects already detained.” – see ECCC Press Release – Statement of the Co-Prosecutors, 5 January 2009. 236

Pre-Trial Chamber Decision on Co-Prosecutors’ Disagreement, as above. For a more detailed discussion of the arguments, see OSJI Report July 2010, pp16-19.

237

On two grounds: they accepted that the national Co-Prosecutor did not know about or participate in the investigations into the additional suspects and a unilateral investigation was a violation of the ECCC Law and therefore invalid; they also found that the proposed submissions were already covered by the extent of the first Introductory Submission and facts of case 002. See Separate Opinions of Judges Prak Kimsan, Ney Thol and Huot Vuthy, Pre-Trial Chamber Decision on Co-Prosecutors’ Disagreement. 238

The international judges rejected both the reasons of their national colleagues: the first reason had been raised out of time and could not be considered, the second they reasoned was factually incorrect given that both Co-Prosecutors had specified the individual crime-sites in case 002, and the proposed new investigations specified new crime sites. See Separate Opinions of Judges Lahuis and Downing, Pre-Trial Chamber Decision on Co-Prosecutors’ Disagreement. 239

Rule 77(13) ECCC Internal Rules.

240

ECCC Press Release - Acting International Co-Prosecutor requests investigation of additional suspects, 8 September 2009.

241

ECCC Press Release – Joint Statement from the Co-Investigating Judges, 9 June 2010.

43 initially been an agreement between them that their staff could carry out preliminary “crime base” investigations for cases 003 and 004, which would presumably have focused on the “distinct factual situations” referred to by the Acting International Prosecutor’s Press Release. The national Co-Investigating Judge co-signed a Rogatory Letter these authorising investigations on 4 June 2010. However, four days later, when information about the proposed new investigations had been leaked to the press prompting a Cambodian government spokesman to reiterate that only five already-named suspects will be prosecuted, the national Co-Investigating Judges changed his mind,242 citing the “current state of Cambodian society” and requesting that his signature be struck out.243 Such statements from the Cambodian government have been made before, raising the question of to what extent this ranks as unjustified political interference, as we will discuss later in the report. 127. As at the date of writing, there has been no progress on the judicial investigations of cases 003 and 004. The Co-Investigating Judges have justified this on the basis that the Office was working on the Closing Order for case 002.244 It remains to be seen whether the national Co-Investigating Judge will change his mind and consent to additional investigations now that the Closing Order has been signed. Investigations could be conducted solely by the international investigators, but for any coercive measures such as issuing an arrest warrant or a provisional detention order, the signatures of both CoInvestigating Judges will be required, in the absence of which the dispute resolution mechanism of the Pre-Trial Chamber will apply.245 128. Although the international Co-Prosecutor has stated that he will not ask for any more investigations beyond the additional five suspects,246 cases 003 and 004 continue to be controversial. Some regard investigative progress upon them as the determinative issue of whether the ECCC can be considered a successful, independent internationalised tribunal.247 Others consider that an already limited budget for the ECCC could not stretch to additional investigations and trials beyond case 002 and the cases should be

242

See OSJI July 2010 Report, page 21.

243

“J’ai pris le temps de considérer longuement l’opportunité de prendre des mesures quelconques vis-à-vis des dossiers 003 et 004, en tenant compte de tous les aspects de la question : les principes généraux de la justice, les principes applicables à l’établissement des C.E.T.C., le contexte actuel de la société cambodgienne dans son ensemble et les impacts éventuels de ces mesures sur le dossier 002, qui se déroule sans difficultés” – letter of national Co-Investigating Judge dated 8 June 2010, cited in ECCC Press Release – Joint Statement from the Co-Investigating Judges, 9 June 2010. 244

See OSJI July 2010 Report, page 20.

245

Rule 72(3), Internal Rules.

246

ECCC Press Release - Acting International Co-Prosecutor requests investigation of additional suspects, 8 September 2009.

247

Notably the OSJI – see OSJI Report September 2010 pp1 and 11.

44 abandoned.248 One proposed resolution of the situation is for the ECCC to conduct the judicial investigations, either with or without the cooperation of the national Co-Investigating Judge, but then transfer any trial over to the Cambodian domestic authorities as part of a “completion strategy”.249 It remains to be seen whether this is a viable prospect.

248

Consultant’s interview with Ny Chandy. Some argue that if there is any potential for the dispute over what to do with cases 003 and 004 to derail case 002, then they should be abandoned – see Consultant’s interview with Christoph Sperfeldt and Oueng Jeudy. 249

OSJI Report July 2010, p22.

Assessment of the ECCC Justifications of the hybrid system 129. In general terms, internationalised tribunals operating in the country where the atrocities take place supposedly offer a number of advantages over purely international courts such as the ICC, ICTY and ICTR. Nationally sited courts are purportedly cheaper, more efficient, more relevant to the affected population and capable of adding value to local lawyers and criminal justice systems.250 Although the location of the tribunal in Phnom Penh was nonnegotiable for the Cambodian government, it is a worthwhile exercise to examine each of the justifications for in-country justice in so far as they relate to the ECCC. (i) Cheaper than an exclusively international court? 130. It was originally projected that the ECCC would last three years and cost a total of $56 million.251 The latest estimate is that the court will cost close to $338 million and last nine to ten years.252 If cases 003 and 004 are investigated and prosecuted, resulting in a total of ten accused over the court’s lifetime, the cost per indictee is $33.8 million. If, as currently seems far more likely, case 002 will be the ECCC’s second and last trial, that figure doubles to $67.6 million per accused. To put this into perspective, the estimated cost per defendant at the Special Court for Sierra Leone is between $23 to $25 million, $21 million at the ICTR and $17.5 million at the ICTY.253 The ICC aside,254 the ECCC is the most expensive of all the international or internationalized courts. Of course, value for money in international criminal law is not simply an accounting process, but these high costs fuel the arguments of those who say that the money would be better off spent elsewhere. Cambodians too do not understand why the court is costing so much.255 131. It is outside the scope of this report to consider in detail the reasons why the ECCC has cost so much money. However, experience has shown that international courts always overrun their estimated timeframe. Internationalised or hybrid tribunals are a still-developing concept, and no two

250

See generally Mendez: 2009, 62-63.

251

ECCC, Revised Budget Estimates from 2005 to 2009, July 2008, at para. S.4.

252

Ford: 2010, 23, discussing and evaluating the ECCC’s Preliminary Budget Estimates 2012-2015, 15 December 2009.

253

Cruvellier, Thierry From the Taylor Trial to a Lasting Legacy: Putting the Special Court Model to the Test ICTJ and Sierra Leone court monitoring Programme 2009. 254

The ICC will have spent $825 million by the end of 2010, see Ford, 2010, 16. There are at least 15 accused who have been indicted and whose cases are at various stages of trial, but to date none of the cases have been concluded – see the website of the ICC, accessed at http://www.icccpi.int/Menus/ICC/Situations+and+Cases/. 255

Consultant’s interview with Rithy Panh.

46 cases are ever the same. The context within which the ECCC has to operate arguably make it the most politically complicated of all the international courts. As one judge put it “every decision is like negotiating a treaty. In France or elsewhere, taking a decision takes a half hour, here we need 8 days.”256

(ii) More efficient than an international court? 132. Can it be said that the hybrid system as it has operated so far at the ECCC has been more efficient? Most of the judicial staff to whom the Consultant spoke gave a resounding “no” to this question. The main complaint was the duplicative nature of investigations in the civil law system.257 In the Duch case, a twelve-month judicial investigation comprised the questioning of the accused over almost 24 days; the interviewing of more than 60 witnesses by investigators; a full site visit at both S-21 and Choeung Ek; and two days of in camera confrontation hearings between Duch and twelve of the key witnesses.258 The vast majority of this questioning had to be repeated at the trial. 133. The ECCC Law requires the court to be based upon “existing procedures in force” – so the French-inspired civil law system in operation is here to stay.259 Nevertheless, the necessity for a comprehensive judicial investigation before an indictment is drafted places a tremendous burden upon the Co-Investigating Judges and their investigators. The Consultant was given to understand that in France the judicial investigation is by far the longest part of the case, and the public trial is by way of verification of the detailed information that was discovered in the judicial investigation rather than a full hearing of evidence for the first time.260 Unmodified, such a process would not be suitable for the ECCC. The principle that justice must be seen to be done is even more important in Cambodia where thirty years have passed since the crimes and where the majority of domestic criminal trials take place without a full examination of the evidence, and many without the accused being present.261 Mindful of the need to hear the evidence publicly, the procedure

256

Consultant’s interview with Marcel Lemonde.

257

Trial Chamber Judge Cartwright described it as “anomalous” that there should be a full-length judicial investigation and a full-length trial – Consultant’s interview with Silvia Cartwright; Pre-Trial Chamber Judge Downing called the procedural system in operation at the ECCC “a waste of time which had caused years of delay” – Consultant’s interview with Rowan Downing. See also Consultant’s interview with former ECCC Senior Assistant Co-Prosecutor Tan Senarong. 258

Personal knowledge of the Consultant from having worked on the Duch investigation.

259

Articles 20, 23, 32 and 33, ECCC Law.

260

Consultant’s conversations with Judge Marcel Lemonde in Phnom Penh, 2007.

261

See Amnesty International – Ongoing Serious Human Rights Violations Must Be Addressed, September 2010, pp7-8. See also the former Cambodian NGO Center For Social Development and its Court Watch Project – Center For Social Development, The Court Watch Project, Annual Report MayDecember 2009.

47 that has evolved at the ECCC has been a combination of both civil and common law, which has sometimes led to confusion and dispute.262 134. It has also been somewhat problematic that lawyers from the common law tradition have had difficulties in understanding or adapting to the civil law tradition.263 The fact that international staff in the Office of the Co-Prosecutor were from a predominantly common law background whereas international staff in the Office of the Co-Investigating Judges were from a predominantly civil law background did not always make for harmonious working relations.264 Interestingly, the same difficulties were not usually encountered within individual chambers where judges came from different systems.265 As we have seen, there was a major breakdown in relations – and discordant respective final speeches – between Duch’s national and international cocounsel at trial. This inauspicious disagreement led to the accused dismissing his foreign counsel three weeks before the judgment was rendered266 and appointing a second Cambodian lawyer in early August 2010 for the appeal process.267 135. The system of having Co-Prosecutors and Co-Investigating Judges, and the need for a dispute resolution mechanism, also slows the progress of the cases. However, although this might mean that the ECCC has, as one UN judge remarked, “probably the worst structure that you can imagine” it was the only one acceptable to all the parties at the negotiating table.268 The specific procedures applicable to the ECCC are also still a work in progress. The Internal Rules have already been revised six times in three years, which has undoubtedly caused uncertainty, but it can be reasonably assumed that most major revisions have now been made following on from the lessons learned in the Duch trial. 136. The fact that most court documents and proceedings need to be translated into all three official languages of the court (Khmer, English and French) slows down the process yet further. There has been at times a critical shortage of skilled translators and interpreters. During the Duch trial, there was no simultaneous Khmer to French translation – French speakers were first translated into English, which was then relay-translated into French. This

262

Email from François Roux, received 29 September, 2010 (copy on file with Consultant).

263

Email from former Defence legal assistant Geoffrey Roberts, 21 September, 2010 (copy on file with Consultant). 264

Consultant’s interviews with Marcel Lemonde and with Thierry Cruvellier.

265

Consultant’s interviews with Rowan Downing and with Prak Kimsan.

266

ECCC Press Release from the Defence Support Section, 9 July 2010; also Falby : 2010.

267

AFP – Convicted Khmer Rouge Jailer Hires New Lawyer, 6 August 2010. Lars Olsen of the ECCC’s Public Affairs Section, is quoted as saying lawyer Kang Ritheary was selected because the court “cannot not find international lawyers that met his criteria.” 268

Consultant’s interview with Marcel Lemonde.

48 greatly restricted the speed of the proceedings and often resulted in missed or garbled translation.269 137. It appears that the sheer number of procedural innovations and novelties, not to mention the compromises necessary to make the court politically tolerated by the negotiating parties, contribute to an overwhelming perception that the ECCC has not been well-organised. Nevertheless, to their credit, the Trial Chamber judges have been congratulated for what the senior monitor of the trial described as an expedient and efficient trial for the first case.270 Delay is, however, unavoidable with such a complex dual structure with co-holders of principal offices.

(iii) More relevant to the affected population? 138. Most people interviewed by the Consultant, both inside and outside the court, agreed that the fact that the ECCC was being held in Cambodia has stimulated far more interest amongst the affected population than had it been held abroad.271 As one commentator remarked: “It is always more relevant for the Cambodian people, although they’re not the fantastic successes they are claimed. They are more relevant than the ad hoc models. The ECCC confirms that trend. The relevance of the process, even though it wasn’t perfect, was far [greater] than if Duch had been tried in Belgium.”272 139. Certainly during the Duch trial there was unprecedented interest. The public gallery of the trial chamber can hold more than 500 people. It is the largest of its kind of any international or internationalised tribunal. 31,000 people came to watch during the Duch trial, the vast majority of whom were ordinary Cambodian citizens. Nearly two million Cambodians have watched video footage of the trial.273 The court is 17 kilometres from the centre of Phnom Penh, so transport was provided by NGOs such as DC-Cam, who brought villagers from all around Cambodia to watch the proceedings. As has been mentioned however, it is questionable how much those attending a single day of the trial will have learned about the trial in particular or the process as a

269

See OSJI – Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, May 2009 Update; and Kok: 2009. 270

Consultant’s interview with Michelle Staggs-Kelsall.

271

See for example Consultant’s interviews with Andrew Cayley; Tony Kranh and Knut Rosandhaug; Christophe Peschoux; Christoph Sperfeldt and Oueng Jeudy. Rithy Panh, noted film director and director of the prominent Phnom Penh cultural and media centre Bophana, remarked how in the months after the Duch trial, Khmer Rouge history was the number one research topic for the young people visiting the centre: Consultant's interview with Rithy Panh. 272

Consultant’s interview with Thierry Cruvellier.

273

OSJI Report July 2010, p15.

49 whole, which is complicated even for those well-versed in the complexities of international criminal law.274 140. The court’s relevance to the affected people is only as good as its Outreach and Public Affairs units, which attempt to explain and publicise its aims and objectives. The ECCC has suffered from serious shortcomings in publicising and explaining the work of the court. Commentators have long identified the lack of a coherent Outreach or Public Affairs strategy at the ECCC, the lack of leadership, insufficient budget and failures to build strong links to national NGOs.275 There are signs now that there is a greater urgency for a coherent strategy for both Outreach and Public Affairs, but some observers have noted that it has been particularly disappointing that the lessons from other tribunals in this regard have not been learned or procedures transferred.276 Cambodia has a diverse NGO community that has been actively engaged in activities to boost public knowledge and understanding of the tribunal and its trials, yet many representatives of civil society believe that the ECCC should have coordinated more closely with their efforts. 141. There have been criticisms too of the court’s transparency. In a country where many cases are decided behind closed doors it is vital for public confidence that the ECCC process is demonstrably different. Some have criticised the fact that large portions of the proceedings are conducted in camera.277 Much of this criticism relates to the secrecy of a judicial investigation. An ECCC judge described this as a misunderstanding of the duty to keep confidential an ongoing investigation before any indictments are issued.278 Nevertheless, the importance of appraising the public of the status of the cases – and explaining the proper need for confidentiality where it arises – is essential to retain public trust. (iv) Better capacity-building effect upon national institutions? 142. Apart from bringing perpetrators to justice, one of the most commonly heard justifications for holding international criminal trials in the affected country is the supposed capacity-building effect upon the domestic criminal justice system, the local judges and lawyers, or both. In Cambodia’s case however, many observers were sounding a note of caution even before the ECCC began about the legitimate expectations of a “one-off” series of trials.279

274

OSJI Report November 2009.

275

OSJI Reports November 2009, March 2010.

276

For example, Consultant’s interview with Source D.

277

Yesberg: 2009, 561.

278

Consultant’s interview with Rowan Downing.

279

“Important as they are, a single series of trials that is exceptional and ‘one-off’ does not carry particular long-term benefits with respect to capacity building… it would be unrealistic to expect the standards of justice that emerge from this one-off process to lead to any long-term capacity building through emulation in courts across Cambodia…” Linton: 2004, 249-250.

50 143. Human rights and rule of law NGOs have been advocating for fair trial rights in domestic courts and for proper funding of the Cambodian legal system for at least fifteen years.280 There has been little progress to date, and many interviewees outside the court were largely pessimistic about any potential influence of the ECCC on the domestic situation.281 A strong, independent judiciary and a legal system that shows no favour to wealth or position is, as we have discussed, simply not in the interests of the current government. More strident critics of the court and the government would add that the operation of the ECCC so far has in fact enabled the Cambodian government to pay lip-service to the ideas of procedural fairness for a few expendable accused, and in fact the ECCC shifts the focus away from the poor state of the domestic criminal justice system.282 144. Deputy Director of Administration Knut Rosandhaug argued that although there was no reference to capacity building in the framework of the court, it was actually happening as a side effect. He added that “you won’t see fruits of that until the ECCC ends and the nationals go into their domestic systems.”283 Similarly, International Co-Prosecutor Andrew Cayley noted that although the main role of the court was not to build the capacity of the local judiciary, but that simply by being involved in the process the national lawyers would benefit from a “degree of learning.”284 145. Some Cambodian lawyers cited “Learning by example”.285 President of the Trial Chamber, Judge Nil Nonn, commented how he had appreciated the “reasoning culture” of the other judges, lamenting that in Cambodia the judges failed to explain their judgments sufficiently and that in future he would seek to explain his judgments more carefully.286 He was surprisingly candid about the difficulties in the Cambodian legal system:

280

See for example the Court Watch Project of former Cambodian NGO the Center for Social Development (see above). 281

Ang Chanrith of Legal Aid of Cambodia stated “I’m not very hopeful, because the local courts are not modern. They don’t take the good model. They don’t think about how to implement and enforce the law – they think about money and corruption from the first instance …up to the Appeal and Supreme Court. They don’t think about justice.” Consultant’s interview with Ang Chanrith. Also see (amongst many others) for example Consultant’s interviews with Mychelle Balthazard, Country Coordinator, Berkeley Human Rights Centre; Rafael Dochau Moreno, EU Charge d’Affaires to Cambodia; Christoph Sperfeldt. 282

See for example Consultant’s interview with Source B.

283

Consultant’s interview with Tony Kranh and Knut Rosandhaug.

284

Consultant’s interview with Andrew Cayley.

285

One interviewee pointed out with some force that international tribunals do not always set a good example, citing the way in which the Co-Investigating Judges and Pre-Trial Chamber failed to provide Duch with an effective remedy for the breach of his right to be brought to trial within a reasonable time by the Cambodian Military Court: Consultant's interview with Thierry Cruvellier. 286

Consultant’s interview with Nil Nonn.

51 “We also have problems because judges aren’t independent in Cambodia – [the government] threaten and put pressure on judges, the judges accept money, so all this is not very good. I will try my best to enhance the capacity to bring the independence to judges – this is my responsibility when I train the judges.” 146. He went on to highlight the problem of lengthy detention without charge, a procedure used by both judges and the police.287 He noted the solution used in Duch’s case, to reduce his ultimate sentence of imprisonment further for a breach of his fair trial rights, and that he would seek to implement this when he returned to his national practice. 147. The problems in implementing international best practices in the Cambodian system were highlighted by national Co-Prosecutor Chea Leang. She suggested that although she and her Cambodian colleagues would like to take her ECCC experiences into the national judicial system, severe funding problems and human resource issues would make it difficult.288 Unsurprisingly, she did not mention the problems of a government unwilling to support a strong judiciary or the rule of law. 148. Over the course of the court’s lifetime, many hundreds, perhaps thousands, of Cambodian staff will have been exposed to the ECCC’s systems of court management, case preparation, legal reasoning and trial advocacy. Each of the principal judicial sections at the ECCC also hold training for their offices, in which all are encouraged to participate, even the most junior. One international judge remarked how the younger staff in particular have developed their skills considerably.289 But however comprehensive the training for lawyers working at the ECCC, there is no absolutely no guarantee that it will be of benefit when they return to the domestic criminal justice system. 149. Similarly uncertain is the question of whether there can be any educative effect of the ECCC in simply showing national authorities how to conduct a trial whilst fully respecting defence rights. There is no concrete evidence yet that national practices are changing since the public trial of Duch.290

287

The Consultant put this to Chea Leang, who denied that any such practices in fact took place, and that if there was unlawful detention it was “only for a day or two longer than is necessary”: Consultant’s interview with Chea Leang. This is of course contrary to all available evidence – see the Center for Social Development’s Court Watch Reports (above). 288

Consultant’s interview with Chea Leang. See also Consultant’s interview with Tan Senarong.

289

Consultant's interview with Marcel Lemonde.

290

Although one senior journalist commented “At some point when the judges and lawyers go back to their institutions there may be some effect – a bail hearing I attended before the Municipal Court appeared to be better-argued and reasoned.” Consultant's interview with Douglas Gillison.

Specific Criticisms of the ECCC 150. As we have discussed, there was much advance criticism of the ECCC long before operations began. In 1999, the United Nations’ Group of Experts had dismissed the possibility of an internationally assisted tribunal based in Cambodia. Their principal objection related to their fears that even such a hybrid tribunal “would be subject to political manipulation by political forces in Cambodia.”291 Eleven years on from these comments, and four years into the ECCC’s operations, allegations of undue political interference continue to dog the court. There have also been persistent complaints of corruption and recruitment malpractice in the Cambodian-government administered side of the court that have caused serious concern. Both complaints deserve detailed analysis. (i) Political interference 151. The ECCC’s founding instruments make clear that fair trial rights are the cornerstone of all proceedings. Article 33 of the ECCC Law makes specific reference to Article 14 of the ICCPR,292 and articles 3(3), 5(3) and 6(3) state that ECCC judges and prosecutors shall be “independent in the performance of their functions and shall not accept or seek instructions from any government or any other source.” 152. Political interference may be defined as an attempt to influence court officials to act in a way that they would not otherwise have acted but for this influence. The impact of political interference is to compromise the independence with which judges and prosecutors have sworn to carry out their official function, which “violates the guarantee of a fair trial.”293 153. Context is all-important. As we have already seen, the concept of the separation of powers is not practised in Cambodia. Judges and prosecutors are not independent. As the OSJI put it, “The Cambodian judiciary is part of a hierarchical political system that prioritises ongoing obedience and loyalty to the ruling elite as essential to economic and professional success. Judges in Cambodia who displease the government are punished or transferred and do not progress professionally…While judges are under a technical legal obligation to act with independence, this principle gives way easily when political interests collide.”294 154. The theory was that things would be different at the ECCC because of the involvement of the United Nations. The hope was that the Cambodian government would not seek to compromise the independence of national

291

Group of Experts Report, paragraphs 137 and 138.

292

Article 14 (1) of the ICCPR reads “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” 293

OSJI – Political Interference at the ECCC, July 2010, p10.

294

OSJI July 2010 Report, p5.

53 judges and prosecutors. The reality is that the government has in fact issued strongly worded statements in relation to judicial and prosecutorial decisions that are capable of being interpreted as having the appearance of an attempt to compromise such independence. When the Cambodian government appoints the majority of judges at the ECCC, this becomes a problem. 155. There have been two principal examples. The first concerns comments made publicly by the Prime Minister Hun Sen (and other government ministers and spokesmen) objecting to investigations into additional suspects (“comments on additional suspects”).295 These comments have coincided with the disagreement between the national and international Co-Prosecutors over the filing of the Introductory Submission requesting the opening of a judicial investigation against an additional five suspects.296 Government statements have also coincided with a decision by the Co-Investigating Judges to publicly announce that they were about to embark on “crime base” investigations for cases 003 and 004. These statements prompted the national Co-Investigating Judge to withdraw his signature for such investigations, thereby reinforcing claims that the national judicial staff were being given instructions by the Cambodian government.297 156. The second example relates to comments made publicly by the Minister of Information in response to witness summonses issued under the sole name of International Co-Investigating Judges against high-ranking ministers and current members of the government in the judicial investigation of case 002 (“comments on government witnesses”). Amongst other comments, the Minister said, “the government’s position was that they should not give testimony” to the Co-Investigating Judges, adding that if foreign officials were not satisfied, they could “pack up their clothes and go home.”298 157. So far, the government’s comments on additional suspects have not yet been addressed in any detail by any of the ECCC’s chambers. The Pre-Trial Chamber’s decision in the disagreement between the two Co-Prosecutors on the additional suspects issue was split down national/international lines, but neither opinions referred to the comments in the press from the government spokesman.299 158. Regarding the comments on government witnesses, the Pre-Trial Chamber recently published a split judgment. Defence teams for Ieng Sary and Nuon Chea had originally proposed the names of current members of the

295

For more detail see OSJI – Political Interference at the ECCC, July 2010, pp16-17 and 20.

296

See Pre-Trial Chamber Decision on Co-Prosecutors’ Disagreement.

297

See above.

298

For more detail see OSJI – Political Interference at the ECCC, July 2010, pp22-23.

299

It does not appear to have been argued by the International Co-Prosecutor that there was undue political interference on his national colleague to block the additional Introductory Submission: see Pre-Trial Chamber Decision on Co-Prosecutors’ Disagreement.

54 government as witnesses to whom the Co-Investigating Judges should speak. The International Co-Investigating Judge alone agreed to this request and issued summonses. The Defence filed a further request to the CoInvestigating Judges in the light of the publicly stated position of the government regarding the attendance of these witnesses. Given the continued failure to respond to the summons, the International Co-Investigating Judge decided against using coercive measures to compel the witnesses to attend; instead he issued a note for the case file recording this non-attendance and saying it was preferable for the Trial Chamber to resolve this issue in due course.300 The Defence filed further submissions requesting the Pre-Trial Chamber to investigate the government’s public comments as a case of interference with the administration of justice.301 The resulting Pre-Trial Chamber decision was again divided down national/international lines, and as there was no supermajority, the Defence request for the question of interference with the administration of justice to be investigated was dismissed.302 159. The two opinions of the Pre-Trial Chamber were extremely revealing. The international judges were unequivocal.303 They said: “…Given the grave nature of the allegations of interference, the PreTrial Chamber must intervene. …No reasonable trier of fact could have failed to consider that the above-mentioned facts and their sequence constitute a reason to believe that one or more members of the Royal Cambodian Government may have knowingly and wilfully interfered with witnesses who may give evidence before the Co-Investigating Judges…

300

The Consultant asked Judge Lemonde about this issue. He said that coercive measures would never have been feasible, and would have unacceptably delayed the process. He considered it would be far better for the Trial Chamber to examine this issue in the public arena rather than the confidential confines of a judicial investigation. He added “This may result in a major crisis, but at least we will have got to the trial itself. We’ll have to see what happens. If I had dealt with things in another way, we may never have got to the judgment at all. I know not everyone agrees with this, but I continue to believe we did the least worst thing.” - see Consultant’s interview with Marcel Lemonde. The OSJI have indicated that they believe such a failure to employ coercive measures as tantamount to complicity in the political interference: see OSJI Report July 2010. 301 Pursuant to rule 35 of the Internal Rules, where the Co-Investigating Judges or the Chambers have a reason to believe that “any person knowingly and wilfully [has interfered] with the administration of justice” (which includes anyone who “threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with a witness or a potential witness”) they may either “(a) deal with the matter summarily, (b) conduct further investigations to ascertain whether there are sufficient grounds for instigating proceedings or (c) refer the matter to the appropriate authorities of the Kingdom of Cambodia or the United Nations.” 302

For the full procedural history, see ECCC Pre-Trial Chamber Second decision on Nuon Chea's and Ieng Sary's appeal against OCIJ order on request to summons witnesses, 002/19-09-2007-ECCC-OCIJ (PTC) 9 September 2010 (“Pre-Trial Chamber Split Decision on Interference Investigation”). 303

Pre-Trial Chamber Split Decision on Interference Investigation, Opinions of Judges Catherine Marchi-Uhel and Rowan Downing.

55 …Further investigations are warranted [because] … First, the Chamber is under an obligation to ensure that the integrity of the proceedings is preserved…the judges of the ECCC must consider their obligation to act when an action taken by an individual threatens the administration of justice… …Second…is the charged persons’ right to a fair trial. If an interference has occurred or is currently occurring and that interference impedes the judicial investigation, the charged persons may be prevented from obtaining possible advantage that may emerge from the testimony of the six officials. Preventing testimony from witnesses that have been deemed conducive to ascertaining the truth may infringe upon the fairness of the trial.” 160. The national judges disagreed with their international colleagues,304 finding that the statements of the Minister were not by their nature threatening, intimidating or coercive directly or indirectly. They reasoned that the spokesman’s use of “should not give testimony” rather than “shall not give testimony,” indicated that this did not have “the character of an absolute order.” The national judges offered three further justifications why the allegations did not even cross the low threshold of a “reason to believe” that there had been interference: firstly, that the Minister did not specifically assert that he expressed his opinion in the name of the government (which is palpably false given the wording “the government’s position is…”); that the six witnesses mentioned are “dignitaries of a higher status, rank and title” than the Information Minister and that according to the principle of hierarchy of ministers those of lower status “are in principle not entitled to order or to coerce those of higher status” (which is, arguably, evidence that the Minister of Information did not have the requisite mens rea for interference); and that there is no written proof that the high-ranking witnesses would not come because they are intimidated (which is irrelevant to the determination of the alleged interference). 161. The Pre-Trial Chamber’s Judges’ poor reasoning will not reduce the suspicions that Cambodian government-appointed judicial staff are not independent. 162. The Consultant spoke to many people both inside and outside the court about the allegations of political interference. Two major points of view were expressed, with a number of other interesting observations. 163. There were those who considered that the repeated comments of the Prime Minister and other members of the government did indeed amount to political interference.305 These people argued that further proof is not needed,

304

Pre-Trial Chamber Split Decision on Interference Investigation, Opinions of Judges Prak Kimsan, Ney Thol and Huot Vuthy.

305

Consultant's interviews with (amongst others) Thierry Cruvellier, Rafael Dochau Moreno, Hong Kimsuon, Ou Virak, Long Panhavuth, Christophe Peschoux and Theary Seng.

56 given the Cambodian context, and that the strongly-worded comments of the most powerful man in the country is as good as an order.306 Further, they point to the timing of the comments, and their similarities to justifications subsequently given by the national Co-Prosecutor and national CoInvestigating Judge respectively as reasons to oppose further prosecutions or the summoning of high-ranking ministers as officials. This, they argue, is sufficient circumstantial evidence from which to conclude that there has been active political interference in the independent functioning of the national judicial officers. 164. The alternative point of view comes from those who argue that the Prime Minister and other senior government officials are entitled to express their own opinions.307 They say that all courts attract comment from political figures, and no international tribunal has operated in a political vacuum without states, their politicians or the UN passing comment.308 Some also argue that there is a difference between an attack on independence and a lack of integrity of any individual judge, claiming that judges should in effect have the resolve to vote with their conscience rather than simply following comments made to the Press by government officials. 165. The difficulty for those who hold the second point of view is that the two international judges from the Pre-Trial Chamber have now gone on record in a publicly-released split decision to say that there is a reason to believe that a member or members of the government may have attempted to interfere with the administration of justice at the ECCC. Whilst this is not the same as a concrete finding of such, these are serious allegations. For the credibility of the court, such allegations must be investigated further. The fact that in the absence of a supermajority such an investigation is blocked is a real problem.309 166. Outside observers have lamented the absence of any strong stance taken by the United Nations and the donors on this issue.310 Article 28 of the ECCC Agreement gives what might be described as the “nuclear option” of withdrawing assistance in the event the Cambodian government either changes the structure of the ECCC or causes them to operate in a manner that does not conform to the terms of the Agreement.311 To the knowledge of the Consultant

306

Trial Chamber Judge Silvia Cartwright has gone on record stating that “comments which appear to be an attempt, politically motivated or otherwise, which appear to be an attempt to interfere with [the independence of the courts and judges] is to be deplored.” See OSJI Report July 2010. 307

Consultant's interviews with Chea Leang, Knut Rosandhaug, Tony Kranh, Prak Kimsan.

308

A position accepted by others – see Consultant's interviews with, for example, Thierry Cruvellier and Andrew Cayley. 309

Technically, the International Co-Investigating Judge could conduct such an enquiry, but (as the two international Pre-Trial Chamber judges remarked in their separate opinion in the Split Decision on Interference Investigation) it appears that he will not do so. 310

In particular the OSJI – see their July 2010 report.

311

Article 28, ECCC Agreement: “Should the Royal Government of Cambodia change the structure or

57 from the public records, this option has never been mentioned, let alone used, in any of the negotiations between the UN and senior Cambodian officials. 167. One of the difficulties in resolving this issue once and for all is that the allegations of political interference are not backed up with what has been called “smoking gun” evidence.312 Both judges and administrators told the Consultant that if such evidence were forthcoming, presumably for example evidence that meetings have taken or were taking place in which the Cambodian officials at the ECCC are instructed what to do by the Cambodian government, they would see the matter very differently.313 168. As we discussed earlier on, it was Deputy Prime Minister Sok An himself who said in the debates on the ECCC Law before the Cambodian National Assembly that it would be a violation of the independence of the ECCC for the UN or the government to fix a number of target accused in advance. As the head of the government’s ECCC Task Force, he has made no recent similar statements reaffirming the importance of judicial and prosecutorial independence at the ECCC. Should evidence emerge that he has been involved in giving instructions to the Cambodian government-appointed staff at the court, there would be serious repercussions. 169. It is unrealistic to expect individual Cambodian staff at the court that witness or are part of direct interference to speak out.314 They will remain in Cambodia long after the UN have left. Rumours and gossip are one thing, but there are those who say that they have such direct evidence but are too afraid to reveal it. 170. The pressures on individual international staff are far lower, although by definition it is unlikely that they will be party to instructions being given to national staff by the government. 171. The OSJI has highlighted a lack of leadership within the ECCC at the highest level to address issues of actual or potential political interference. In July 2010, Ambassador Clint Williamson was appointed as the UN SecretaryGeneral’s Special Expert to the ECCC. As has been said, it is hoped that this “provides the UN, the ECCC’s donors, and the court with the high-level leadership long needed to tackle the difficult ongoing problems of

organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease to provide assistance, financial or otherwise, pursuant to the present Agreement.” 312

Consultant’s interview with Heather Ryan, OSJI.

313

Consultant's interviews with Knut Rosandhaug and Judge Rowan Downing, the latter saying that if there was such direct evidence he wouldn’t remain at the ECCC. 314

Even Trial Chamber President Nil Nonn gave a flavour of the prevailing climate by recognising that he “won’t get to the top” for expressing certain views on the lack of independence of Cambodia’s judiciary: Consultant’s interview with Nil Nonn.

58 political interference and funding.”315 Once again, time will tell whether Ambassador Williamson will be able to persuade the Cambodian government not to interfere in the ECCC or make public statements which are capable of being construed as such interference. 172. So, where does this leave the credibility of the ECCC? The CoInvestigating Judges have failed to investigate the issue of political interference. The international judges of the Pre-Trial Chamber have been prevented from doing so due to an absence of the required supermajority. Only the Trial Chamber and the Supreme Court Chamber remain, but there as elsewhere Cambodian government-appointed judges form the majority. It is now down to the UN and the donors, assisted by the UN’s Special Expert, to insist on ECCC judicial and prosecutorial independence and to persuade the Cambodian government to revise its previously stated public views. This must be backed up by a credible threat of withdrawal under Article 28. Unaddressed, the issue threatens to destroy the court’s, and the UN’s, reputation. 173. As mentioned above, the Prime Minister has recently given a public reaction to the Trial Chamber’s judgment in the Duch case. Stating that he respected the verdict, Hun Sen curiously added the phrase “The government has no right to interfere or put any pressure on the court.” As the OSJI have remarked, “[t]his attitude should now be publicly demonstrated with regard to the other cases pending before the court.”316 It remains to be seen whether the government demonstrates that it is serious about not interfering.

(ii) Corruption allegations 174. From 2007 the ECCC has been plagued with two allegations of corruption in the form of “kickbacks” and irregularities in the recruitment process principally involving Cambodian administrative staff. The OSJI has led the demand for greater transparency and for more effective measures to combat what they have described as “corrosive” and “toxic” practices in the Cambodian side of the administration.317 As they stated in their report of May 2009 “corruption may be endemic to other institutions in Cambodia, but that is no reason to tolerate it in a UN-backed court that purports to provide justice to Cambodians, be a model for judicial reform, and comply with international standards.”318 175. Based on complaints filed to the UN from Cambodian staff that claimed that they were required to “kick back” a percentage of their salary to

315

OSJI Report September 2010, pp2 and 7.

316

OSJI Report, September 2010, p9.

317

See the OSJI Reports of October 2008, May 2009, November 2009, and July 2010.

318

OSJI Report May 2009, p12.

59 more senior officials at the ECCC, an investigation was conducted by the UN’s Office of Investigation and Oversight Services (“OIOS”). The report was confidential, although the findings were presented to the Cambodian government with recommendations for further investigation. As the OSJI noted, this must be “an indication that the OIOS found a prima facie case that there was a problem with corruption in the court.”319 176. Since then, a protracted series of negotiations took place between ECCC officials, the UN and the Cambodian government. The senior Cambodian administrator at the court, Director of Administration Sean Visoth was removed from office.320 In August 2009, an “independent corruption counsellor” was appointed by the Cambodian government to oversee a nascent anti-corruption programme for the court. The OSJI suggested that these efforts were insufficient.321 177. In June 2007, the UNDP had conducted an audit of human resources management on the national side of the ECCC, and concluded that there were serious and continuing flaws in the recruitment process.322 Even the President of the Trial Chamber gave the Consultant anecdotal evidence of this.323 178. As most commentators agreed, both forms of corruption were threatening to seriously undermine the ECCC’s integrity and ability to complete its work.324 Defence teams and Civil Party lawyers were also citing the negative impact of these allegations upon the fairness of the proceedings – the latter requested the Trial Chamber to order the release of the OIOS Report during the Duch trial, a request the Chamber rejected.325 179. In March, April and May 2009, corruption stories in the Press were threatening to overshadow coverage of the historic opening of the Duch trial

319

OSJI Report November 2009, p21. For more detail on the work of the OIOS, see OSJI Report August 2009, p19. 320

The official reason originally given was that he was on sick leave, but it is now accepted that he was removed because of his involvement in the corruption. This is implicit in Knut Rosandhaug’s comment that “removing one administrator may be a solution to kick-backs, but it may not be a solution to corruption…” – Consultant’s interview with Knut Rosandhaug. See also OSJI Report August 2009, p5. 321

OSJI Report November 2009, p20.

322

United Nations Development Programme - Audit of Human Resources Management at the Extraordinary Chambers in the Courts of Cambodia, (4 June 2007) Report No. RCM0172. 323

“I believe that corruption has happened, because there is a case - when I selected staff for Trial Chamber, they seemed to reduce the list of those who spoke English – and they sent me those that don’t have the ability to work!” – Consultant’s interview with Nil Nonn.

324 325

See for example Ledgerwood and Un: 2009, 561.

The Trial Chamber rejected the request on the basis that the UNHQ had informed the chamber that there was no information to suggest that there has been or was any corruption among any of the trial chamber judges or that the judicial process was in any way compromised by corruption: OSJI Report November 2009, p22, quoting ECCC Trial Chamber Decision on Group1 - Civil Parties' Co-Lawyers' Request that the Trial Chamber Facilitate the Disclosure of an UN-OIOS Report to the Parties, Case 001/18-07-2007/ECCC/Trial Chamber.

60 and the calling of the first witnesses.326 There was never any suggestion that there had been any impact of corruption upon the conduct of the Duch trial or the verdict. It is at least arguable, however, that corruption anywhere in a court system tarnishes everything the court does – even if some cases are conducted properly. 180. Recently there appears to have been some progress. The OSJI report of July 2010 noted that both donors and ECCC officials had “vigorously pursued” the issue, firmly stating that corrupt practices “might destroy” the entire court, resulting in the Cambodian government taking “significant steps to address the corruption problem.”327 As one prominent observer said to the Consultant “if properly handled, the issues can be resolved. My understanding that the system of kickbacks has stopped at the court. This is extremely positive.”328 181. UN Special Expert Clint Williamson is also expected to monitor the situation and according to International Co-Prosecutor Andrew Cayley “it is felt that this issue is being addressed.”329 182. Perhaps now that steps are being taken it is time to reassess whether the expression “corruption-ridden” should automatically be used to describe the ECCC.

Victim Participation at the ECCC 183. One of the principal innovations at the ECCC is the development of victim participation in the tribunal’s proceedings through Civil Party status. Under domestic Cambodian law, victims of an offence may request the investigating judge to become a Civil Party, the purpose being to claim compensation from an accused for damages arising from the crimes of which he is convicted.330 The experience of the ECCC so far however demonstrates that Civil Party participation is much more complicated when dealing with mass crimes and large numbers of victims. 184. The scheme of Civil Party participation at the ECCC has been hailed as “groundbreaking” for victims,331 but closer examination calls for more

326

OSJI Report May 2009, p12.

327

OSJI July 2010 Report, p25, note 63. There was no mention of what these significant steps were.

328

Consultant’s interview with Heather Ryan. Richard Rogers, Principal Defender, also alluded this to.

329

The Co-Prosecutor added in describing Williamson: “he can only be a force for good…If anyone can sort out the funding and the relationship with the government, it’s him… He’s an extremely effective operator” - consultant’s interview with Andrew Cayley. 330 331

See Articles 137 and 142 of the new Cambodian Criminal Code of Procedure.

See Diamond: 2009; see also OSJI Report September 2010, p11; International Federation of Human Rights: 2010.

61 caution. As the Trial Chamber noted in a controversial decision on the scope of their participation, the role of Civil Parties “must be understood in the context of the history of its development.”332

The original Civil Party scheme 185. The only mention in either the ECCC Law or Agreement of any form of victim or Civil Party participation is a reference in Article 36 new of the ECCC Law dealing with the jurisdiction of the Supreme Court Chamber to decide appeals “made by the accused, the victims or the Co-Prosecutors.”333 Whether an oversight by the drafters or otherwise,334 this required the judges to interpret the intended extent of victim participation when drafting the Internal Rules at the first Plenary. Article 12 of the Agreement and article 33 of the Law require the ECCC to operate in accordance with existing Cambodian criminal procedure. So, as domestic law technically permits victim participation in a case as a Civil Party, a majority335 of Plenary judges created similar provisions for use at the ECCC. 186. The original rule 23 of the Internal Rules stated that there is a twofold purpose for bringing a Civil Party action before the ECCC: firstly, to participate in criminal proceedings by supporting the prosecution; and secondly, to allow victims to seek “collective and moral reparations” for harm they have suffered.336 Individual or financial reparations are not included in the definition of permitted reparations. 187. A Victims’ Unit was created by the original rule 12 of the Internal Rules. Its role included assisting victims to lodge complaints, under the supervision of the Co-Prosecutors, and assisting victims in submitting applications to become Civil Parties, under the supervision of the CoInvestigating Judges.337 188. Before they are admitted as Civil Parties, applicants are required to show that they suffered “physical, material or psychological injury” as a direct

332

ECCC Trial Chamber Decision on Civil Party Co-Lawyers’ Joint Request For a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning The Questioning of the Accused, Experts and Witnesses Testifying on Character, Case file No. 001/18-072007/ECCC/Trial Chamber, 9 October 2009 (“Decision on Civil Party Standing”) paragraph 10. 333

Article 36 (new) ECCC Law.

334

As suggested by one of the ECCC judges who wished to remain nameless.

335

Trial Chamber President Judge Nil Nonn explained that some of the judges had voted against giving victims Civil Party status at the ECCC, but that they were out-voted by the majority: Consultant’s interview with Nil Nonn. 336

Collective and moral reparations were later defined by the fifth and sixth revisions of the Internal Rules in February and September 2010. 337

Rule 12(2)(c) and (d), Internal Rules, first edition.

62 consequence of at least one of the alleged crimes of the Charged Person upon which a claim of collective and moral reparation might be based.338 189. The original Internal Rules permitted Civil Party applications to be submitted at any time up until the opening of proceedings before the Trial Chamber, although they were to be determined by the Co-Investigating Judges, appealable to the Pre-Trial Chamber.339 Had all the applications been received in timely fashion, with proper assistance from the Victims’ Unit, this would have enabled them to have been determined in good time before the trial. However, the Victims’ Unit was not properly financed, staffed or equipped from the outset.340 The unit was simply unable to provide the required level of assistance to Civil Party applicants. This resulted in the participation at trial of applicants who had not even submitted the evidence upon which their claim must be based, let alone had their applications determined. This left the Trial Chamber itself to hear the evidence during the trial. There was no time to determine the applications during the hearing, which resulted in 24 of the 90 Civil Party applicants being rejected when the final judgment was delivered, which was widely criticised as being too late and unfair.341 190. Civil Party status entitles victims to be considered a party to the proceedings342 and to be represented by a national lawyer of their choosing, or an international lawyer working with a national lawyer.343 191. Party status grants victims extensive rights at every stage of the proceedings. They are permitted to have access to the case file and to request investigative actions in the judicial investigation phase.344 By their legal representatives (and through the President) they may question witnesses and the accused, and may give testimony themselves, at the public trial.345 They also have limited rights of appeal to the Pre-Trial Chamber and to the Supreme

338

Rule 23(2) of the original Internal Rules (now Rule 23bis(1) of the fifth revision of the Internal Rules).

339

Rule 23(3) and (4), Internal Rules, first edition.

340

A number of interviewees felt that the unit was never properly supported by the ECCC’s administration, one of whom suggested that this may have been because of a fear of escalating costs and difficulties in securing sufficient funding for the structure of the court as it then stood without the added complication of a fully-staffed and fully-operational Victims’ Unit – see Consultant’s interview with Keat Bophal, the first head of the ECCC Victims’ Unit. There was some support for this opinion in the OSJI Report of September 2010, where the failure to allocate a $340,000 donation by the German organisation GTZ to the victims unit had to be re-paid (p13). 341

Civil Party lawyer Silke Studzinsky said that this amounted to “ill-treatment for the victims” (Consultant’s interview with Silke Studzinsky), a view shared by many and eventually acted upon by the judges in the February 2010 revision of the Internal Rules. 342

Rule 23(6) Internal Rules, first edition.

343

Rule 23(7) Internal Rules, first edition.

344

Rule 55(6) and (10) of the Internal Rules.

345

Rule 91(1) and (2) of the Internal Rules.

63 Court Chamber as against decisions of the Co-Investigating Judges and the Trial Chamber.346 192. However, the Trial Chamber confirmed during the Duch trial that the Civil Parties did not in reality have equal status to the two other principal parties.347 Civil Party lawyers had requested to be able to question the accused, experts and witnesses in relation to character. The Trial Chamber, by a majority, reasoned that a restrictive interpretation of Civil Party rights is required given the distinct difference between their role and the CoProsecutors and rejected the requests. They found that Civil Parties have no interest in the sentencing element of a trial, which is the sole preserve of the Co-Prosecutors. Conversely, only the Civil Parties may concern themselves with reparations, in which the Co-Prosecutors have no interest.348 Moreover, the Trial Chamber accepted the Defence submissions that there would be a breach of equality of arms where Civil Parties act as auxiliary prosecutors – a right not contemplated by the Internal Rules.349 193. Judge Jean-Marc Lavergne, however, delivered a lengthy and robust dissenting opinion, reasoning, “unless the Rules explicitly exclude Civil Parties from participating or explicitly restrict their rights, logically, it must be assumed that Civil Parties have the same rights and obligations as all the other parties. Any other interpretation can only be contrary to the law.”350 194. The experiences at trial revealed substantial practical and logistical difficulties in how such participation was exercised. Given the expected number of Civil Party applicants in case 002 (more than 2000351 as opposed to the 90 in the Duch case), a total re-think was required of both Civil Party representation and applicable procedure. The result was a major revision of the Internal Rules in the Plenary Sessions of February and September 2010. As the Judges remarked at the conclusion of the latter: “The high number of Civil Party applicants in Case 002, combined with the complexity, size and other unique features of ECCC proceedings, made it necessary to adapt the Civil Party model of victim participation in ECCC proceedings in order to balance the rights of all parties and to safeguard the ability of the ECCC to reach a verdict in any future trials.”

346

Rules 75(1) and 105(1)(c) of the Internal Rules (the Civil Parties can only appeal the judgment of the Trial Chamber where the Co-Prosecutors have themselves appealed). 347

ECCC - Trial Chamber, Decision on Civil Party Standing – see above.

348

ECCC- Trial Chamber, Decision on Civil Party Standing, paragraphs 13 and 25.

349

ECCC- Trial Chamber, Decision on Civil Party Standing, paragraphs 13 and 26.

350

ECCC- Trial Chamber, Decision on Civil Party Standing, Dissenting Opinions of Judge Lavergne, paragraph 13. 351

As at the date of the Closing Order in case 002.

64 The revised Civil Party scheme 195. The new, as yet untested, regime of representation for Civil Parties is as follows. The former Victims’ Unit has been replaced by the Victims’ Support Section (“VSS”) and the Civil Party Lead Co-lawyer Section.352 For the initial stages of the proceedings, the VSS assists victims in lodging complaints (under the supervision of the Co-Prosecutors) and submitting applications to be Civil Parties (under the supervision of the Co-Investigating Judges).353 Individual Civil Parties retain the right to select individual Civil Party lawyers.354 Such lawyers will often have many dozens, or even hundreds, of individual Civil Party clients, grouped according to a particular complaint or ethnic group.355 However, these individual Civil Party lawyers now no longer conduct their clients’ cases at trial. Instead, they relinquish their trial representation rights to the two “Lead Co-Lawyers” whose responsibility it is to globally represent all Civil Parties and to conduct the advocacy before the Trial Chamber. 196. Civil Party Lead Co-Lawyers are the newest innovation at the ECCC. Their role is complex and challenging, as stated in Rule 12ter, namely to “ensure the effective organisation of Civil Party representation during the trial stage and beyond, whilst balancing the rights of all parties and the need for an expeditious trial within the unique ECCC context.”356 197. The Lead Co-Lawyers will be required to liaise with the individual Civil Party lawyers and “endeavour to reach consensus in order to coordinate representation of Civil Parties at trial.” 357 Civil Party Lead Co-Lawyers are also entrusted with making a single claim for collective and moral reparations at the end of the trial.358 It is too early to say whether this task is realistic given the sheer number and diversity of individual Civil Parties. 198. Following the sixth revision of the Internal Rules in September 2010, “collective and moral” reparations are now defined as “measures that (a) acknowledge the harm suffered by Civil Parties as a result of the commission of the crimes for which an Accused is convicted and (b) provide benefits to the Civil Parties which address this harm. These benefits shall not take the form of monetary payments to Civil Parties.”359

352

Rule 12, as amended by the revisions to the Internal Rules in February 2010.

353

Rule 12ter Internal Rules.

354

Rule 23ter Internal Rules.

355

Consultant’s interview with Ny Chandy et al.

356

Rule 12ter (1) Internal Rules.

357

Rule 12ter (3) Internal Rules.

358

Rule 23quinquies(2) Internal Rules, 6th Revision, 17 September 2010.

359

Rule 23quinquies(1) Internal Rules, 6th Revision, 17 September 2010.

65 199. There is also an improvement in the Civil Party application process. Admissibility of Civil Party applications shall now be determined by the CoInvestigating Judges up to the date of the Closing Order, a decision that is appealable to the Pre-Trial Chamber.360 This will avoid the situation of Civil Party applicants waiting until the publication of the trial judgment before their applications are finally determined. The revised Internal Rules also now give additional guidance on the standard of proof to be applied when determining Civil Party applications.361 200. In the most recent Plenary held in September 2010, the final revisions to Civil Party participation were discussed. There had been substantial criticism of the very limited nature of the Civil Party reparations awarded in the Duch trial.362 The difficulty facing the Trial Chamber was that an accused is likely to be indigent and therefore unable to fund any meaningful order for reparations. The Plenary has attempted to circumvent these problems by dramatically expanding the mandate of the VSS. In particular, the VSS will be empowered to work with NGOs and others outside the ECCC to consider nonlegal reparations and measures that might be financed by third parties. The revised provisions now state that as well as considering whether the costs of a reparations award shall be borne by a convicted accused, the Trial Chamber may: “Recognise that a specific project appropriately gives effect to the award sought by the Lead Co-Lawyers and may be implemented. Such project shall have been designed or identified in cooperation with the Victims Support Section and have secured sufficient external funding.”363 201. The recognition that Civil Party claims for reparations within a criminal trial might be met from sources external to the parties in the case is without question groundbreaking. It is a victory for all those who argue that criminal trials of mass atrocity should have a restorative as well as retributive purpose. Reactions and comment 202. The Consultant canvassed the opinions of Civil Parties, their lawyers, other court staff as well as outside observers for their assessment on the Civil Party participation to date. Some of these reactions are not as positive as the architects of the Civil Party system would have wanted – although it must be

360

Rule 23bis(1)-(4) of the Internal Rules.

361

See rule 23bis(1), Internal Rules, which clarifies that the Co-Investigating Judges shall use the balance of probabilities to determine whether the facts in support of the application are proved. 362 363

Consultant’s interviews with Theary Seng, Christoph Sperfeldt and Oueng Jeudy, Silke Studzinsky.

Rule 23quinquies(3), ECCC Internal Rules, Sixth Revision, 17 September 2010. A further proposal that the Trial Chamber be granted the power to make non-binding recommendations to the government of Cambodia was rejected as being “beyond the scope of the ECCC’s powers” - ECCC Press Release – Eighth Plenary Session Concludes, 17 September 2010.

66 observed that the new regime has yet to be tested in practice and most opinions related to the old Civil Party regime. 203. Reactions from Civil Parties who had participated in the Duch trial were mixed. Although some explained how they were glad to have been given the opportunity to tell their story in public,364 most expressed extreme disappointment at the reparations.365 They had also been angry and confused at the Trial Chamber’s limitations upon their lawyers’ rights to question witnesses.366 The Civil Parties and many people in civil society felt that the accused had been granted greater rights than the victims themselves, and there were some furious reactions to the perceived leniency of Duch’s ultimate sentence.367 204. Some outside observers and Civil Party lawyers had noted how the victims had become empowered by the process of testifying and attending court.368 Others, however, criticise the concept of empowerment through participation as “merely a rhetorical device” and that the reparations were unimaginative and derisory.369 Others still pointed out the unfairness of how the Civil Parties in case 001 had been guinea pigs for the larger case to come.370 Another commentator suggested that it was inevitable things would not be right first time for victims in such a novel and still-developing process.371 Given the importance of the issue it was surprising that the mechanisms were not thoroughly thought-through from the beginning.372 205. The question of victim expectations was also raised by a number of interviewees. Some considered that these expectations had been mis-managed,

364

Consultant's interview with Robert Hammill.

365

Consultant's interview with Chum Mey. One Civil Party lawyer added, however, that some of his poorer clients had always wanted financial compensation, even though it had been clearly explained to them that this was outside the scope of permissible reparations at the ECCC: Hong Kimsuon, in Consultant’s interview with Ny Chandy et al; and Consultant’s interview with Ang Chanrith. 366

One Civil Party, Chum Mey, led a protest “walk out” after the Trial Chamber decision to refuse permission for Civil Party lawyers to ask questions on the accused’s character. He was also moved to set up the very first victims’ association, KsemKsan: see Consultant’s interview with Chum Mey and website of KsemKsan accessed at www.ksemksan.org. 367

Consultant’s interview with Christoph Sperfeldt and Oeung Jeudy. See also Mahdev Mohan The Paradox of Victim-Centrism: Victim Participation at the Khmer Rouge Tribunal, International Criminal Law Review 9 (2009) 733-775 at 737-8. 368

Un and Ledgerwood: 2010, 9.

369

Mohan: 2009, 769.

370

Consultant’s interview with Michelle Staggs-Kelsall.

371

“Evolving justice is always at the expense of someone” - Consultant’s interview with Thierry Cruvellier.

372

As Civil Party lawyer Hong Kimsuon put it “Before people adopt this system, they need to consider whether they have sufficient funds to start with…They need to think before they do anything – as we say in Cambodia, ‘don’t ink before think’.” – see Consultant’s interview with Ny Chandy et al. Also see Consultant’s interview with Mychelle Balthazard and Douglas Gillison.

67 whether it was in relation to the permissible reparations, participation in the trial or the ultimate sentence imposed on the accused. Responsibility for this was attributed, variously, to the parties to the Agreement (ie, the UN and the Cambodian government), the ECCC itself, individual Civil Party lawyers and even NGOs.373 206. Another issue raised was the need for the Co-Investigating Judges to release the scope of the investigation earlier – to enable the VSS and NGOs to canvas potential Civil Party applicants long before the deadline for the submissions of applications.374 Even the new Civil Party regime only permits applications to be made up to 15 days after the notification by the CoInvestigating Judges of the closing of the judicial investigation.375 207. As far as the new system of Lead Co-Lawyers is concerned, most observers understand the need to streamline the procedures for case 002 if the sheer weight of numbers of Civil Parties is not to overwhelm the trial process.376 The Deputy Head of the ECCC’s VSS described the Lead CoLawyer system as “a very interesting and exciting addition to the court’s architecture” which has the possibility of improving the clarity of the Civil Party positions. His view was that there was a real need to ensure Civil Parties are presented with one voice, given the fact that in the Duch trial there was a lack of coordination between the individual Civil Party lawyers. He concluded by remarking that the degree of victim participation at the ECCC far exceeded the level for victims at the ICC and other tribunals: “it’s clear that it is a unique experiment – time will tell if it’s gone too far or sets legitimate expectations for Civil Parties the world over.”377 208. There are still problems, however. NGOs who had previously been funded to assist Civil Parties have complained that they no longer have donor support. The Consultant interviewed a large group of Civil Party lawyers. Individually, they represent many hundreds of individual Civil Party applicants. They described serious problems of funding, lack of office space and resources, and limited opportunities to see all their clients who may live in far-flung provinces all around Cambodia.378 They explained that collaboration and cooperation with international Civil Party lawyers has been mixed, complaining that some did not make much effort to integrate with the team,

373

Youk Chhang alleged that “some of the Civil Parties have been lured into this process by NGOs because it was money-driven. Also the donors are interested in seeing how the system operated. Victims and being victimised by that.” See also Consultant's interviews with Mychelle Balthazard, Andrew Cayley, Thierry Cruvellier. 374

Consultant’s interview with Ang Chanrith, Director of Legal Aid of Cambodia.

375

Rule 23bis(2) Internal Rules, fifth revision.

376

See for example Consultant's interview with Keat Bophal.

377

Consultant’s interview with Paul Oertly.

378

Consultant’s interview with Civil Party lawyers Ny Chandy, Ven Pov, Chet Vanly, Pich Ang, Hong Kimsuon and Sun Sukhorn.

68 and sometimes they were left with the impression that some international lawyers only came to Cambodia to grandstand. 209. There is a sense that although the Duch trial was a “missed opportunity,”379 the new Civil Party regime must be given the full backing of the ECCC and the donors in case 002. 210. A recent civil society memorandum suggested that there were three areas requiring significant improvement: a more proactive ECCC Outreach, the endorsement of the Trial Chamber of feasible forms of collective reparations and the full support for the extended mandate of the VSS to provide coordinated assistance to non-judicial measures.380 All of these goals should be well within the reach of the ECCC, especially given the sixth revision of the Internal Rules. 211. Nevertheless, there are inherent limitations upon reparations and full participation for victims before internationalised tribunals trying crimes of mass atrocity. Some have argued that it is impossible for victim participation to be meaningful within the framework of such a trial, suggesting that victims will always be disappointed by their lack of parity with the accused (who will inevitably be given greater rights and protections), the way in which their evidence may be subjected to cross-examination and the inability to gain any tangible benefit in the form of financial reparations. Rather than participate within the strict confines of court proceedings, it has been argued that victims should become involved in parallel, non-legal mechanisms such as culturally appropriate ritual or art.381 212. It is as well to remind ourselves how much further advanced are the rights of victims before the ECCC than before any other international or internationalised tribunal. As one commentator noted “At the end of the day, even though it was messy and the representation was often poor, it seems that it did bring to the trial a dimension considered missing at the other tribunals… Anyone who says that this is not an interesting experiment here at the ECCC forgets how frustrated the victims were in the ICTY.”382 213. In conclusion, the Civil Party “experiment” (and this is the appropriate word) is still some distance from being finalised, let alone evaluated. There are some real challenges ahead: for the VSS to fulfil their recently-expanded mandate to creatively explore options for non-judicial reparations; for the

379

Consultant’s interview with Reserve Trial Chamber Judge Claudia Fenz.

380

Cambodian Human Rights Action Committee (CHRAC) and the FIDH – The ECCC at a Crossroad: Making Victim Participation Meaningful Ahead of the Second Trial, Civil Society Memo, 13 September 2010. 381

Mohan: 2009, 770-775.

382

Consultant’s interview with Thierry Cruvellier.

69 Civil Party lawyers to liaise effectively with the Lead Co-Lawyers so that the latter are able to meaningfully represent so many different interests at trial; for the Trial Chamber judges to ensure that Civil Party participation and the reparations are as meaningful as possible; for Cambodian civil society to support the new Civil Party regime and, with the ECCC’s Public Affairs section, ensure Outreach is comprehensive and timely; and for the victims themselves to continue their quest for recognition and reconciliation in all areas of Cambodian society as well as simply at the ECCC.

The impact and legacy of the ECCC 214. There are two schools of thought when considering the aims and objectives of international criminal tribunals. There are those who believe that such tribunals have a range of responsibilities, to victims, to the affected society as a whole, and to the international community at large.383 This has been reflected in the language of many of the founding instruments of the various international and internationalised tribunals over the course of the past two decades – including the Preamble to the ECCC Agreement. In contrast, there are those who argue, as did Hannah Arendt, that an international tribunal should never promise more than it can deliver, and the sole purpose should be to try perpetrators and impose condign punishment if the requisite standard of proof has been attained to convict those accused of criminal offences.384 215. The finer points to this debate are outside the scope of this report. Nevertheless, with the establishment of each international or internationalised tribunal comes the responsibility to set out realistic and achievable goals. This is all the more so in a country such as Cambodia – which has not only had to wait so long for justice but whose population has an inherent mistrust of the institution of justice itself. 216. It is too early to assess the final impact and legacy of the ECCC, but after the first four years of operation, several themes stand out so far.

Impact upon Cambodian society 217. The first is to consider the potential impact upon Cambodian society. There is credible and mounting evidence that the extensive coverage on television and other media of the Duch trial has ignited a debate across the whole country and between the generations.385 Cambodia has a very young

383

See, for example, Douglas: 2001.

384

Mohan: 2009, 771, citing Arendt: 1994.

385

Consultant’s interviews with Source D, Rithy Panh.

70 population.386 Many millions of them have difficulties believing the atrocious stories their parents tell them.387 For the survivors themselves, their stories have gone so long unheard that many have up to now chosen to keep quiet. As one source put it: “15 years ago, the Khmer Rouge was a taboo topic. People were afraid of the very words. It was too political. It wasn’t in the schoolbooks. Parents didn’t talk to their children. Even the Phnom Penh Post was scared to publish articles about the Khmer Rouge. The trial, the court and the associated Outreach activities going around it – the court’s own and the efforts of the NGOs are really starting conversations everywhere in the country about this – among ordinary people, the younger generation and their parents, citizens and public officials, and I think it is going to have a transformative effect on Cambodian society...”388 218. In the days and weeks after the Trial Chamber issued the Duch judgment, DC-Cam toured the country with a video recording of the two-hour summary that had been read out by the Trial Chamber President.389 A “sensitisation” programme had been conducted in the days beforehand, as well as a discussion session after the screening. It is entirely understandable that many of the comments from the villagers regarding Duch’s punishment and the reparations were negative. But there were those interviewed by the Consultant who expressed the view that simply by exposing ordinary Duch judgment Cambodians to the ECCC process – and to the idea that there are other countries who may have gone through similar events – enables them, as one Civil Party lawyer put it, “To understand more about the world [and to understand that] justice cannot only be done by one country – there are other countries that share this concern”390 219. We have already discussed how psychologists testified in the Duch trial about the prevalence of post-traumatic stress disorder amongst the Cambodian population who lived through the Khmer Rouge years. It has been suggested that the trial process itself may contribute to improving the psychological health of the nation. According to one prominent civil society activist, “Now the victims feel there is a little justice in Cambodia…People feel released from their suffering – victims can pray to their parents’ souls that the

386

Nearly 60% of Cambodia’s 2008 population was under 25: Cambodia General Census Population 2008, accessed at http://celade.cepal.org/khmnis/census/khm2008/. 387

Consultant’s interview with Source D.

388

Consultant’s interview with Source D.

389

Documentation Centre of Cambodia – The Duch Verdict: A DC-Cam Report from the Villages July 26, 2010. 390

Consultant’s interview with Ny Chandy.

71 key perpetrator has been sentenced to 35 years. So they can now move on and live in peace.” 391 220. A Civil Party lawyer suggested that there had been several other important benefits. He argued that the ECCC and the Trial Chamber judgment would “reduce the tension amongst the victims” and contribute to reconciliation, as this would show that even though the crimes happened a long time ago, “the top leaders will be caught.”392 221. The goal of reconciliation, or “national reconciliation” as it appears in the Preamble to the ECCC Agreement, is not often fully understood. There have been suggestions that in Cambodia this equates to “collective healing”393 or that it in some way enables “people to reconnect with their past while mending the wounds of the society.”394 222. Suzannah Linton’s detailed study Reconciliation in Cambodia395 in 2004 is still the definitive work on the subject. Her definition of reconciliation suggests that it “Involves the process of learning how to co-exist and work together with people one does not like or is not liked by and coming to terms with personal negativity about one’s experiences, whether one be victim or perpetrator. Reconciliation as a process may be simply about assisting people and through that, wider society, to get things back into perspective so that all may lead as normal lives as possible.”396 223. However, she explains that the reason there was a real lack of significant progress in Cambodia towards these goals was because of the interests of the political elite, who were more concerned with using the term ‘national reconciliation’ “as a convenient label for power sharing as a solution to ongoing political struggles.”397 We have already seen how the government, and those ECCC staff appointed by the government, continue to use the term “national reconciliation” as the justification for blocking additional investigations.398 224. It would appear that national reconciliation means different things to different groups in Cambodia. To the Cambodian government, it means not

391

Consultant’s interview with Ang Chanrith.

392

Ven Pov in Consultant’s interview with Ny Chandy et al.

393

Yesberg: 2009, 555-579 at 562.

394

Vaz: 2009.

395

Linton: 2004.

396

Linton: 2004, 15.

397

Linton: 2004, 16.

398

See the various comments of Prime Minister Hun Sen (above) and the Consultant's interviews with Prak Kimsan, Tony Kranh and Chea Leang.

72 disturbing the current solidified political environment. To the Cambodian people, it is a more complicated mix of desiring accountability for the crimes of the past, promoting social justice for the present and wishing for a fairer society for the future. 225. Given that solidified political environment in Cambodia, it is unrealistic to expect that the ECCC alone will achieve any of these goals.399 National reconciliation requires the engagement of the most powerful interests in society as well as NGOs and well-meaning donors. There is little indication that the Cambodian government is truly interested in promoting greater dialogue between different stakeholders in society and promoting a more inclusive democracy, as we discussed earlier in this report. 226. Linton’s work was six years before the publication of the Duch verdict. Her research may be somewhat different now. The Trial Chamber clearly felt that there was room for hope when it expressed the view that Duch’s cooperation with the ECCC during the investigation and trial positively “assisted in the pursuit of national reconciliation, one of the goals of the ECCC.”400 Civil Party and S-21 survivor Chum Mey, who led the protest at the judges’ refusal to permit Civil Party lawyers from questioning on issues of the accused’s character, does not agree. He says that without justice there could be no reconciliation – and he considers that Duch’s sentence was so low and the reparations so little that there was no justice.401 227. It seems that every decision and judgment of the ECCC is capable of being seen as having an impact on reconciliation, whether this is how the Civil Party participation issue is resolved, how the Trial Chamber’s judgment is explained, or how transparent is the decision to investigate additional suspects. In simple terms however, perhaps Linton’s analysis still holds true. As one Civil Party lawyer explained, “it’s national reconciliation when the people can live with the perpetrators.” He suggested that when the victims have a greater understanding of what happened in the Khmer Rouge regime, and why the perpetrators treated people the way they did, this would enable people to start living together without fear, mistrust and hatred.402 228. Some commentators argue that there is no empirical research to justify the claim that international tribunals in and of themselves promote reconciliation, and the ECCC will be no different.403 Others speak of the

399

Reserve Trial Judge Fenz: “I’ve been very unhappy with the way international tribunals have hid themselves by saying they’ll play an important role in national reconciliation – I’m not saying the court can’t be a catalyst, but the court cannot do it alone. The problem is as long as we aspire to do that we are measured by that and we can’t live up to it – that’s not what the court is about!” Consultant's interview with Claudia Fenz. 400

Duch Trial Chamber Judgment, paragraph 609.

401

Consultant's interview with Chum Mey.

402

Per Hong Kimsuon, Consultant's interview with Ny Chandy et al.

403

Mohan: 2009, 733.

73 powerful symbolic effect the trials will have on wider Cambodian society, promoting the idea that impunity for serious criminality is finally capable of being challenged.404 However, perhaps the most balanced approach comes from a leading Cambodian civil society activist: “Reconciliation will only take place after the court has closed, the UN people leave, and the people start to absorb the truth, it’s the closure, they then discuss and move forwards.”405 229. National reconciliation (in as much as it is desired by ordinary Cambodians rather than the government) is as so much else at the ECCC a work in progress.

Impact upon the development of Cambodian law 230. The impact of the ECCC on fair trial rights generally in Cambodia has already discussed above. As we have noted, it is unrealistic to expect that the Cambodian criminal justice system will change without the political will to do so. However, there are individual areas where the ECCC has an educative effect on standards of legal debate. The most obvious and concrete example is the decision of the Trial Chamber regarding Duch’s Military Court detention, arguably the most widely applauded decision of the tribunal to date.406 231. The Trial Chamber was unequivocal in its criticism of the way in which Duch’s fair trial rights were violated by the Military Court, and rebuked both the prosecutor and the court itself.407 There was neither dissent from the individual Cambodian Trial Chamber Judges,408 nor complaints from the Cambodian government about this ruling.409 232. One interviewee emphasised the political significance of the Trial Chamber ruling on Duch’s Military Court Detention: “this was in effect a rebuke of the [current ruling] party standing committee and a personal rebuke of Judge Ney Thol, the president of the military court and judge of the ECCC. This sort of challenge is unprecedented in modern Cambodian history and a great victory for the rule of law.”410

404

Etcheson: 2005, 187-9.

405

Consultant's interview with Ou Virak.

406

See Consultant’s interviews with Ou Virak and Heather Ryan.

407

Trial Chamber Decision on Duch’s Request for Release, paragraph 20.

408

Consultant’s interview with Silvia Cartwright – “there was absolutely no dissention from the Cambodian judges.” 409

Consultant’s interview with Heather Ryan.

410

Consultant’s interview with Source D.

74 233. The Trial Chamber’s decision is proof that the ECCC at least understands the rights of the accused, as one Civil Party lawyer expressed it.411 The challenge will be for Cambodian defence lawyers to apply the same principles in domestic cases. There is no evidence yet one way or the other to suggest that this will materialise.

The Legacy of the ECCC 234. The Consultant has elsewhere discussed412 the fact that how a tribunal concludes its operations is as important as how it is established,413 and how the study of completion strategies and legacy is now firmly established as a discipline in its own right.414 235. Similar to the other international and internationalised tribunals, there was no mention of legacy or completion strategy in either the ECCC Law or the ECCC Agreement, nor even in the Internal Rules. However, the pressure of time caused by aging and increasingly infirm accused and the critical shortfalls in the budget have brought these issues more sharply into focus. The court is perhaps a little under halfway through its current (readjusted) projected timeframe of nine years. Given the size of the task, legacy issues are already properly being actively considered.415 236. As one commentator noted, legacy at the ECCC is an extremely broad concept: “It spans and impacts on the judicial system, on the development of internationalised justice systems internationally, of personal, political and institutional relationships within the elite of Cambodia’s society, relationships between many different groups within Cambodian society, between generations, between people on different sides of the war in the 80s and 90s. It has to do with what’s taught in Cambodian schools; what will be done with all of the records; the extent to which victims feel that they have any closure from the process and many other categories.”416 237. As at the date of writing, two initiatives have been established to address the legacy of the ECCC.

411

Consultant’s interview with Ny Chandy et al.

412

Bates : 2010, paragraphs 250-251.

413

See for example Heller: 2009; Raab: 2005, 82-102. See ICTJ: 2010; United Nations OHCHR - Rule-of-Law Tools For Post-Conflict States: Maximising the Legacy of Hybrid Courts, Office of the United Nations High Commissioner for Human Rights, New York and Geneva, 2008. 414

415

Assuming the latest estimate of 2015 as the date by which all appeals will be concluded is realistic. This may depend on whether cases 003 and 004 are investigated, and whether the ECCC or the national authorities would conduct the trials. 416

Consultant's interview with Source D.

75 238. Internally, the ECCC’s Department of Administration has created a Legacy Advisory Group to discuss these issues and a smaller Legacy Secretariat to take decisions based on these discussions.417 As at the date of writing, however, there has been little progress,418 prompting some criticism in civil society.419 239. The only area in which there appears to have been detailed consideration given to so-called legacy and residual issues is in the field of archiving. A project called the “Virtual Tribunal,” an ECCC initiative in collaboration with the various US universities to “enhance the archival legacy of the court,” 420 is scheduled to commence in 2011. The Virtual Tribunal will be an online repository for all ECCC documents, trial video footage, expert analysis and case progress in user-friendly format. However, rural Cambodia has limited access to electricity, let alone to computers, and this project will be well beyond the reach of many millions of Cambodians. 240. The second initiative is external to the court. The UN’s OHCHR, after a period of seeking to keep its distance from the tribunal,421 has created the post of ECCC Legacy Officer. The aim of the post is to examine how best the hybrid tribunal can benefit the domestic structure. The recently recruited Legacy Officer has only just commenced her work, so it is too early to say what the impact of this project might be.422 241. As has been recognised by civil society, legacy takes considerable planning. It involves not simply the archives, but also the transfer of any residual cases, the supervision of detainees and the review of any new evidence that comes to light.423 Legacy also requires the consideration of what will happen to the physical resources at the ECCC such as the buildings (in particular the courtroom itself) and the computers.424 Most importantly, there

417

Consultant's interviews with Long Panhavuth and Knut Rosandhaug.

418

The Deputy Director of Administration, Knut Rosandhaug, considers that it is still “a little early” to consider “post-court impact” – Consultant's interview with Knut Rosandhaug. An opposing view is expressed by Judge Downing of the ECCC PTC – “Now is the time to move it forward and not later – if you want to draw a proper conclusion to this court, before you get near the end is the time to flesh out the issues, it should be laid open for consultation,” Consultant's interview with Rowan Downing.

419

Consultant's interviews with Long Panhavuth and Christoph Peschoux.

420

ECCC website – ECCC http://www.eccc.gov.kh/english/virtual_tribunal.aspx.

Virtual

Tribunal,

accessed

421

The Head of Office explained that the OHCHR had wanted to preserve its “operational space” by not getting involved with the monitoring of ECCC trials: see Consultant's interview with Christophe Peschoux. 422

According to the new OHCHR Legacy Officer, Michelle Staggs-Kelsall, “OHCHR is hoping to implement a series of activities in Cambodia that uses the ECCC as a catalyst and also engage with the ECCC’s lawyers that might benefit the domestic structure – e.g., best practice, to legal dialogue, how the ECCC has interpreted pre-trial detention or sentence.” See Consultant's interview with Michelle Staggs-Kelsall. 423

Consultant's interview with Long Panhavuth.

424

Consultant's interview with Ny Chandy.

76 is the question of how best to transfer the human resources back to the national system.425 There are a number of proposals still at the development phase – including a judicial mentoring programme using senior Cambodian judicial officials at the ECCC to talk to young Cambodian lawyers about their experiences.426 But as one researcher said, “legacy is a rolling ball. The ECCC has started something that wasn’t there, and it’s going to keep going. Other people are going to have to keep it rolling.”427 242. As we have discussed, funding at the ECCC has always been uncertain. More than ever in the global climate of financial uncertainty, the donors need to know that there is an end in sight to the ECCC’s operations, which were only ever supposed to be temporary. Even by those who wish to see a greater number of suspects investigated, everyone accepts that the core of the court’s function is case 002. It is uncertain whether donors would be willing to fund another investigation and full trial of an additional five suspects. Discussions are underway regarding how best the work of the court can be completed without excessively extending the budget and lifespan, whilst preserving the integrity of additional investigations and the independence of the CoProsecutors and Co-Investigating Judges. These are not easy negotiations. 243. OSJI has reported that some are suggesting that one option would be to transfer the investigation or public trial of cases 003 and 004 over to the domestic authorities.428 Undoubtedly this would cause controversy given the state of the Cambodian criminal courts. Another option was being discussed in ECCC meetings in August 2010 regarding the possibility of replacing international staff with national staff.429 There are fears that this downgrading of capacity might result in a reduction in quality of investigations or judgments. Hard choices lie ahead for the ECCC – especially if donors refuse to continue funding the court. 244. One long-time commentator and veteran of several international courts expressed a final, thoughtful view on the question of the ECCC’s legacy. Arguing that potential legacy achievements are “generally used as propaganda for the court to justify their funds for donors,” it was, he said, important to be “incredibly humble and modest about what these tribunals bring back to the national system.” He argued that for many, an international tribunal has little relevance to their daily lives, even if they operate in the countries in which the atrocities occur. This is all the more so when, as in Cambodia, the crimes are more than three decades old.430 One might also repeat that it is important to be realistic about the achievable goals of an

425

Consultant's interview with Paul Oertly.

426

Consultant's interview with Christophe Peschoux.

427

Consultant's interview with Mychelle Balthazard.

428

OSJI Report July 2010, p22.

429

Informal conversations the Consultant had with ECCC sources that wish to remain nameless.

430

Consultant's interview with Thierry Cruvellier.

77 essentially retributive mechanism in a society that also requires parallel efforts of restorative justice, and it is to these we now turn.

A Truth and Reconciliation Commission for Cambodia? 245. A number of people predicted that the specific nature of the ECCC trial proceedings would in fact be more like a TRC than an internationalised criminal tribunal.431 One commentator remarked: “It appears from the rules governing the ECCC and its jurisprudence that the Cambodians have created a unique criminal court with strong restorative justice aspects similar to those usually associated with reconciliation commissions.”432 246. So it proved to be at trial, with the judges taking the leading role in questioning and with the format being somewhat (although not completely) inquisitorial rather than adversarial. The significant involvement of Civil Parties and the hearing of character evidence at the same time as factual evidence also contributed to create a unique process. Some of the participants suggested that the trial at times appeared to function more like a TRC.433 Nevertheless, some have argued that a formal and broad-based TRC would complement the work of the rather narrow focus of the ECCC. 247. Cambodia at first sight appears to be the ideal environment for a truth and reconciliation commission (“TRC”) as a complement to an international tribunal: a large number of victims and perpetrators, a well-developed NGO community and a population with a desire and the need to move forward and to put the past behind them. 248. The UN’s Group of Experts discussed the feasibility and desirability of a TRC in 1999. After speaking to people within and outside the government, they discovered that many Cambodians were in general non-committal about the idea. They found Cambodians to be unclear about the function of a TRC, and that they considered that the priority was for criminal trials. The Group of Experts raised three other major concerns: first, it was not clear that Cambodians would be willing to participate in a TRC; second, they were not sure whether Cambodian political environment had reached the level of national reconciliation needed for a TRC; and third, they considered that any TRC may impede the fair operation of a criminal trial. Ultimately, they

431

For example, Skilbeck: 2008, 423-445: “Given the informal rules of evidence that apply, and the different method of questioning the witnesses, the trial will resemble a truth commission much more than previous tribunals.” (at p444) 432 433

McGonigle: 2009, 135.

Consultant's interview with Heather Ryan quoting Defence Counsel Francois Roux who stated that in his view the trial at times resembled a TRC. This was also the experience of the Consultant, who participated in the first two months of the trial, especially during somewhat philosophical passages in the evidence which were of no direct relevance to the commission of the crimes - such as much of the testimony of François Bizot, the archaeologist who had been detained under Duch’s authority at M-13 but who was later released, only to write a book about his experiences: Bizot: 2004. Also see Duch Trial Transcripts, 8-9 April 2009.

79 concluded that the time was not right for a TRC, but that it would be for the whole of Cambodian society to reflect on what appropriate “truth-seeking” measures might be implemented in the future.434 249. Eleven years on, many of these concerns still exist in Cambodia. In 2004, Suzannah Linton was of the view that the only way in which a TRC in Cambodia could be beneficial was if it was (a) perceived as fair and credible by a broad cross-section of Cambodians; (b) widely publicised; and (c) backed up by complementary transitional justice strategies providing assistance in mental health and rehabilitation at grassroots level.435 As we have seen, today the main stumbling block appears to be the first of these preconditions. Although most civil society activists to whom the Consultant spoke were virtually unanimous in favour of the theory of establishing a TRC,436 the majority of interviewees were of the opinion that in practice it would be unworkable or undesirable. 250. There were three objections. Firstly, that there would be no political will for a TRC.437 As one interviewee put it, “The same political constraints that stood in the way of a comprehensive approach [to prosecutions] would have applied at least as much to a TRC. If the government doesn’t want the truth to be told, if they define it as those in the government being exempt from scrutiny, then how can you have a proper truth commission” 438 251. Another interviewee remarked that a TRC would “not be a valuable process” because high-ranking people in government would not come to testify.439 The participation of everyone in society would be needed, and as the international Co-Investigating Judge has already experienced during the judicial investigation of case 002, government ministers do not like to be interviewed. 252. Secondly, a number of interviewees argued that there were cultural reasons why a truth-telling mechanism was not necessarily appropriate in a Buddhist, non-Christian country such as Cambodia. Youk Chhang, the Director of the Documentation Centre of Cambodia, put it this way:

434

Group of Experts Report, paragraphs 202-208.

435

Linton: 2004, 244.

436

Consultant's interviews with: Ang Chanrith, Hang Chhaya, Long Panhavuth (who argued that because the ECCC is not victim-centred, a TRC was needed to fill the gap) and Ou Virak. Thun Saray opposed the creation of a TRC for the reasons given by the Group of Experts. 437

Consultant's interviews with Source D, Mychelle Balthazard, Claudia Fenz and Heather Ryan.

438

Consultant's interview with Source B.

439

Consultant's interview with Thun Saray.

80 “Cambodia is not a Christian country based on forgiveness, so the same truth commission model used in predominantly Christian countries cannot be applied directly. Forgiveness in a Christian world is linear, in a Buddhist world it’s circular – one must respect culture of the region for survivors.”440 253. Other interviewees agreed, cautioning against importing restorative justice mechanisms wholesale from other countries with different cultures and beliefs.441 Instead, they argue, efforts should be made to ensure that reconciliation or truth-telling initiatives should be firmly grounded in the indigenous Buddhist culture. A detailed examination of the guiding principles of Buddhism and their impact on society in general and criminal justice in particular is outside the scope of this report.442 But as Ian Harris argues, events such as public “acts of truth” – in essence a truth-telling ceremony – could have great resonance within Cambodia, especially if they are led by respected monks who are generally thought of as being above the corruption and patronage prevalent in the rest of Cambodian politics and society.443 254. It should be noted that there are already a number of ceremonies and public days of remembrance in which the Khmer Rouge era is marked. The most notable is the annual 20 May “Day of Anger” at which a re-enactment of the Khmer Rouge crimes is played out at the “killing fields” memorial at Choeung Ek.444 255. Another is the festival of ancestor remembrance, P’chum Ben. Civil Party and S-21 survivor Chum Mey has suggested that this would be the appropriate festival for relatives to pray for the victims of the Khmer Rouge, but to date the reparations requests for official, ECCC-sanctioned stupas or other memorials have gone unheeded by the ECCC.445 Perhaps now the Internal Rules have been revised to permit the VSS to seek external funding for collective and moral reparations, there will be scope to satisfy future Civil Parties. 256. Finally, some suggested that NGOs had already been performing the functions of a TRC, that this was sufficient and that there was a need to draw a line under the Khmer Rouge period and move on.446 In the thirty years since the fall of the Khmer Rouge, particularly since the UNTAC years of the early

440

Consultant's interview with Youk Chhang.

441

Consultant's interviews with Rafael Dochau Moreno and Claudia Fenz.

442

For which see Harris in Ramji and van Schaak: 2005, 59-95.

443

Harris in Ramji and van Schaak: 2005, 59-95 at pp85-86.

444

See Carmichael: 2010.

445

Consultant’s interview with Chum Mey.

446

Consultant's interviews with Youk Chhang, John Ciorciari and Mychelle Balthazard.

81 1990s,447 there has been an influx of NGOs into Cambodia. Many of them have addressed issues of reconciliation and education. As one commentator suggested: “Because NGOs and other organizations have already carried out a number of duties usually associated with those of a TRC, such as the gathering of victim testimony and reporting on the conflict, Cambodia could argue that a TRC was not necessary and in fact would duplicate the work already carried out by other institutions.”448 257. Youk Chhang goes even further. Remarking how there have already been many initiatives to memorialise the suffering of the victims – stupas, forums and other informal truth-telling efforts - he believes that “Having some formal TRC to recognise these local efforts which taken together can be considered equivalent to a TRC already, would undermine the efforts of what’s happened in the last 30 years.”449 258. Youk Chhang looks to the future and sees education as the most important tool in the quest for reconciliation. The Khmer Rouge years are now being taught in schools, thanks to the efforts of DC-Cam in publishing and convincing the government to disseminate a textbook on DK history.450 With the ECCC’s Outreach and Public Affairs Sections finally coordinating a strategy with NGOs,451 perhaps there is some force in these arguments. 259. Another view comes from the new OHCHR Legacy Officer who suggests that there is a need for alternative indigenous non-judicial initiatives to address some of the issues facing victims in Cambodia. She suggests that there is a lot of space for narrative, story telling and art which could make a positive impact and assist the victims to come to terms with their losses so long buried.452 Such a view is endorsed by Mahdev Mohan, ECCC Civil Party lawyer and academic, who argues “Instead of seeking to provide for both retributive and restorative justice within the ECCC’s procedures or even a complementary legal

447

See the Cooperation Committee for Cambodia’s website describing the steady growth of NGOs in Cambodia, accessed online at http://www.ccc-cambodia.org/aboutus/summary-history.html. 448

McGonigle: 2009, 127-149 at p145.

449

Former S-21 senior guard Him Huy has often described how after the Khmer Rouge were driven from power he was arrested and served time in jail for his crimes at the prison. 450

Guy De Launey – Textbook Sheds Light on Khmer Rouge Era, BBC World News, 10 November 2009.

451

See Consultant’s interviews with Mychelle Balthazard, Long Panhavuth. Also see the report from the ICTJ on their three‐day workshop Making an Impact: Guidance on Designing Effective Outreach Programs for Transitional Justice held at the ECCC in March 2010: see ICTJ – Outreach Strategies in International and Hybrid Courts, Report of the ICTJ-ECCC Workshop, Phnom Penh, March 3-5, 2010, ICTJ Research Unit, April 2010. 452

Consultant’s interview with Michelle Staggs-Kelsall.

82 mechanism, we should look to fora beyond the legal ‘arena’ in order to deliver restorative justice to Cambodian victims…victim-centrism’s therapeutic goals would be better served by a new Victimology rooted in inherently local conceptions of story-telling, art and ritual that avoid universalised narratives and deploy extra-legal ideas about mass atrocity in Cambodia.”453 260. It is difficult to imagine such alternative strategies totally replacing the measures currently being taken by the ECCC and justice and human rights NGOs, but there certainly appears scope for a complementary role.

453

Mohan: 2009, 740.

Conclusions and lessons learned “The eternal question, which I ask every morning is, is it better to have no tribunal at all, or that we do what we can?” 454 261. From the Consultant’s own experience, this is a commonly heard rhetorical question for those who work at the ECCC. As another interviewee expressed it, “Confronted with the moral dilemma of dealing with a flawed process, or abandoning it to a process which would be more flawed, the UN [staff] have accommodated to the situation [and] tried to make the best of a bad deal – over time that has resulted in a kind of modus vivendi…at the cost of accommodating the flaws that so many found so shocking at the beginning.”455 Without the presence of the UN, the ECCC could not function in the way that it does – legal drafting, advocacy and decision writing would not be of such a high standard. Yet whilst individual decisions or even whole trials may be recognisable to scholars of international tribunals, the criticisms persist. Are the UN staff simply legitimising a process in which suspects have been preselected by the Cambodian government? Can it be said that holding one or two credible trials in the tribunal’s lifetime balances out this criticism? 262. It is a sterile debate to consider whether Cambodia needed a different type of court to the government-majority dominated hybrid that was eventually agreed upon. No tribunal could have functioned without the cooperation and consent of the Cambodian government – in assisting the suspects’ arrests, in giving access to the evidence and the crime scenes, and in ensuring the participation of witnesses. In terms of what was achievable, the ECCC was probably the best that the international community could have got.456 The uncomfortable truth is that the trade-off for any form of internationally supported criminal accountability mechanism was a tribunal that was always likely to be compromised by the considerable flaws of the domestic polity. 263. It should not come as any surprise that there have been allegations of political interference and corruption at the ECCC. That much was expected from the earliest discussions, and clearly anticipated by the Group of Experts. These allegations cannot now be dismissed as unsubstantiated cynicism. But as one commentator has remarked, it is surprising that the tribunal has come this far. As he puts it, no doubt speaking for many, there was no expectation

454

Consultant’s interview with Marcel Lemonde.

455

Consultant's interview with Source B.

456

As one interviewee remarked – Consultant's interview with Marcel Lemonde.

84 that the ECCC would ever work: “[i]n short, it’s already achieved much more than people thought it was going to achieve.”457 264. The ECCC has to operate under extremely challenging conditions: the elapsed time since the events under consideration; the prevalence of countrywide post-traumatic stress disorder exacerbated by thirty years of impunity; a historical script for the offences in question that has been repeated so frequently and without question that it suggests any judicial outcome is predetermined; an over-powerful national government which operates without many of the safeguards of a mature democracy; a rapidly-aging and increasingly infirm group of seemingly pre-determined target accused; a vocal body of international NGOs ready to seize upon every weakness and compromise; and an operational period in which the global economic crisis has coincided with international donor fatigue. 265. The structure and operation of the court only adds to these challenges: a lack of leadership with neither Registrar nor President to stand up for the ECCC and stand up to pressure from the national government; a funding system reliant on voluntary contributions from sceptical donors; a dual cosystem for the prosecution and investigation that invites deadlock and delay where there is disagreement; a supermajority procedure which cannot remove the tendency to vote according to nationality; an unfamiliar legal procedure within which lawyers from civil and common law traditions battle for supremacy of interpretation; and a system of victim participation through the Civil Party mechanism that is still a work in progress. 266. It is practically certain then that this particular set of circumstances will never coincide again. Perhaps therefore it is wrong to talk of the ECCC as a model for future instances of accountability. As an experiment in international criminal justice, however, it was quite clear from speaking to most interviewees that there are some real lessons to be learned, even if as one source noted the ECCC has seemed unable to learn the lessons from other tribunals.458 267. One of the most obvious lessons learned has been just how difficult it is for hybrid tribunals to function at all.459 We have already discussed in detail the political challenges, but there are also inter-personal challenges. Some suggest that a period of cultural and linguistic education and sensitisation should be prescribed for every international staff member sent to work in such an environment,460 whereas others were firmly of the view that no advance preparation could compensate for such an overtly political environment as in Cambodia.461 At the ECCC, as elsewhere, international staff are very much

457

Consultant’s interview with Thierry Cruvellier.

458

Consultant’s interview with Source D.

459

Consultant’s interview with John Ciorciari.

460

Consultant’s interviews with Long Panhavuth and Tan Senarong.

461

Consultant’s interview with Source B.

85 left to make their own minds up about their national colleagues, or their own duty of capacity building. Yet even if, as the international Co-Prosecutor suggested,462 a capacity-building role had been built into the court’s founding statute, it is most unlikely that this would have had any impact whatsoever on the domestic political involvement in the court. What happens in Cambodia is also going to happen at a majority Cambodian-dominated court. 268. Operationally, not having proper leadership within the court is a real shortcoming.463 It remains to be seen whether the newly (and belatedly) created position of UN Special Expert will make an impact. The importance of the ECCC having one voice rather than a split national / international identity was also stressed.464 Additionally, an international tribunal requires a fully equipped and adequately financed Outreach section to be operational from day one. This is all the more so where a court is operating within the affected country itself. As many have noted, the engagement and participation of the national population is critical to the success of the institution.465 Although it is too early to tell whether the initial victim backlash at the perceived lenient sentence in the Duch case will develop into entrenched cynicism and disengagement, it at least highlights the need for proper education and sensitisation of the population to the potential outcomes of a trial well in advance. Thun Saray, the President of the Cambodian human rights NGO, ADHOC, was moved to state in response to criticism of the Trial Chamber that “[j]ustice is not revenge. Justice is not for victims alone.”466 Had there been more extensive Outreach from the Court to explain the possible outcomes of the Duch verdict, perhaps there would not necessarily have been so much disappointment. 269. The views on victim participation at trial were more mixed, with some feeling that an international criminal court was not the most appropriate forum within which victims can participate.467 Others were even more pessimistic, considering that unless Civil Party participation was well funded and meaningful it could actually cause damage to the victims.468 The Civil Party system is now more streamlined with the February and September 2010 amendments to the Internal Rules, but the huge number of victims will make it difficult for anything but the most token representation from the Civil Party Lead Co-Lawyers. Their task in coordinating the interests of literally thousands of victims will be extremely difficult. The newly defined concepts of “collective and moral” reparations do not appear to add much to the debate,

462

Consultant’s interview with Andrew Cayley.

463

Consultant’s interviews with Knut Rosandhaug, Prak Kimsan, Michelle Staggs-Kelsall.

464

Consultant’s interview with Youk Chhang.

465

Consultant’s interview with Mychelle Balthazard.

466

Consultant’s interview with Thun Saray, President of ADHOC, The Cambodian Human Rights and Development Organisation. 467

Consultant’s interview with Claudia Fenz.

468

Consultant’s interview with Silke Studzinsky.

86 nor does the Trial Chamber have any power of enforcing the financing of reparations. 270. Expanding the role of the Victims Support Section to include the possibility of working with and securing funding from third parties for the benefit of victim reparations, and authorising the Trial Chamber to endorse these efforts, is on paper a real breakthrough. It is to be hoped that the practice matches the theory, that there is adequate funding, and that it also stimulates parallel initiatives outside the court from civil society, international NGOs, the government or private donors.469 271. Another general point relates to the funding of the tribunal. Whether by voluntary donations, a system of state-sponsored contributions to a trust fund, or as part of the United Nations’ own budget, secure funding is critical. Realistic time estimates within which the tribunal will complete its mandate is also key, however difficult this may be to determine.470 It would also seem far preferable if the planning and negotiating of the key issues, including the procedural rules to be ultimately applied, are conducted well before the judicial officers take up their posts. This would enable the judges and prosecutors to commence work immediately upon arrival, rather than having to spend valuable time negotiating details that should have been resolved before they took office.471 272. The tendency has been to see international or internationalised tribunals as a panacea for transitional justice. They are clearly not. Setting limited objectives for what a court can achieve is the more cautious yet realistic approach.472 Of course no court addressing mass crimes can deliver total satisfaction. The inadequacy of punishment is inevitable for such criminality on a countrywide scale. At best, the partial justice delivered by international tribunals will have symbolic significance to the population at large. At worst, it will be tokenistic, incomplete and irrelevant. 273. that

But where does the ECCC fit on this scale? One commentator notes

“[In] legacy terms, the ECCC is the most symbolic tribunal ever. Although most of them are symbolic, the ECCC is symbolic to the point of wondering whether it was worth doing it in the first place.”473 274. If only five people are prosecuted in response to a total death toll of between 1.7 and 2.2 million Cambodians, the question posed is a fair one. But how many prosecutions before the ECCC would be acceptable? “No more

469

Consultant’s interview with Claudia Fenz.

470

Consultant’s interview with Andrew Cayley.

471

Consultant’s interviews with Silvia Cartwright and Rowan Downing.

472

Consultant’s interviews with Mychelle Balthazard and Claudia Fenz.

473

Consultant’s interview with Thierry Cruvellier.

87 than ten senior leaders and a similarly small number of ‘others most responsible’” were the words of Deputy Prime Minister Sok An in the National Assembly Debates. But is the total of twenty accused really that much more numerically significant than five when the death toll was so high? So many of the senior leaders of the Khmer Rouge have died, most murdered in the purges of their own revolution. Pol Pot, the iconic supreme leader of the Khmer Rouge and for decades internationally synonymous with government brutality against its own people, has also escaped justice. What, then, is the difference in only prosecuting the original five suspects alone and prosecuting the additional five as-yet unknown suspects of cases 003 and 004? Unless the identity of the latter are ever made public, we shall never know how far down the chain of command the ECCC was prepared to look – how close to the “grassroots” of the DK Regime’s zones, sectors and districts it is legally arguable to apply the term “most responsible.” 275. The key issue however is the necessity of independent exercise of prosecutorial and judicial discretion in selection of suspects, free from interference or pressure. Most of this pressure comes from the Cambodian government, as we have seen. But it would be wrong to ignore completely the pressure that comes from the donors, who we are constantly told wish to see a “completion strategy” – which in itself places restrictions on the number of additional suspects that may be investigated. However hard it is to hear, especially for the victims, international criminal justice is not simply about political will to prosecute – it is also about the financial means to support the prosecutions in the first place. As funds are not limitless, so the prosecution targets must be restricted. 276. The ECCC has come in for justifiable criticism, particularly from international NGOs, for the Cambodian judges’ and co-prosecutor’s lack of independence. But as one commentator remarked, similar criticism has not been applied to the more established international tribunals, or even to the ICC, all of whom are arguably compromised by some level of political interference and selectivity of prosecution.474 277. One of the essential characteristics of any form of international justice is the political nature of their creation, operation and selection of targets. It would be well to remember that the ECCC is not alone in this field. As the same interviewee continued: “Tribunals are always a reflection of the power of those who support it. The power of a court is proportional to the political powers that back it. This court was the least-backed by powerful [world] interests. You cannot expect judicial actors themselves to go against the orders of a state if they are left on their own. You can’t expect the judicial system on its own or by itself to challenge the political sphere on their own. It doesn’t mean political

474

Consultant's interview with Thierry Cruvellier.

88 interference is good, but I think it helps to understand why it couldn’t have been any different.”475 278. Whilst individual trials at hybrid courts may be considered fair and conducted broadly according to international standards of due process, if the largest component of a tribunal is controlled by a corrupt national government with its own political agenda, the entire institution will never totally rise above these negative associations. By all reasonable consensus, the Duch trial exceeded the limited expectations even the most optimistic commentators might have had before the ECCC commenced operations. Although far from perfect, the principal elements of articles 14 and 15 of the ICCPR were undoubtedly respected. 279. Significant an achievement as this is however, for many it is overshadowed by the allegations of political interference and corruption. If there is political interference at any level in the ECCC, then (it is argued) the entire process is compromised. Yet anyone who knows anything about Cambodian politics and society will have anticipated this interference and corruption. It is wholly unrealistic to compare the ECCC with domestic courts in a stable democracy. Of course, in absolute terms, all courts must exercise their functions independently: any that do not are compromised. There is a wider debate on the “purity” of all international courts, and the extent to which most if not all of them are subject to or the product of political pressure or compromise. The fact that the ECCC is a product of a particularly obvious form of political compromise does not make it a unique institution. 280. The contexts within which international or internationalised courts function requires an examination of their impact on the society as a whole. The Duch trial appears to have been useful to Cambodia and Cambodian society. As we have seen, there have been important spin-off benefits in the form of a stimulation of inter-generational dialogue; resurgence in interest and therefore education about the recent history; a spotlight on the suffering of victims; and the chance for the Cambodian people to finally put the past behind them. 281. There is far less chance of the ECCC trials (and it is to be hoped that there will be at least another one after Duch) having any impact upon the Cambodian criminal justice system or the rule of law more generally. Exposing Cambodian lawyers at the ECCC to a system of thorough investigation, rigorous cross-examination and well-reasoned judicial opinion may well have an educative effect, but certainly not a transformative one. The iron grip of the ruling party, as described by the Group of Experts and by all the interviewees who were prepared to express an opinion on the subject, remains the supreme determinative force in Cambodia. 282. An ultimate assessment of the ECCC is still some way off. The prognosis will depend on whether the trial of case 002 can be managed

475

Consultant’s interview with Thierry Cruvellier.

89 efficiently, meaningfully involving the several thousand Civil Parties without compromising the rights of accused and before any of these accused lose their battles against age and infirmity. To a lesser extent, it may also depend on how or whether cases 003 and 004 progress through the ECCC system. 283. Notwithstanding the presence of the UNâ&#x20AC;&#x2122;s Special Expert, there is still potential for irretrievable breakdown in relations between governmentappointed and UN-appointed judges or Co-Prosecutors, particularly when it comes to these additional suspects but also in case 002 and the issue of enforcing witness summonses for high-ranking officials in the current government. If there are any further revelations, either of direct interference or high-level corruption, this may also be fatal to the ECCC and lead to the United Nations withdrawal under Article 28. If on the contrary the United Nations and the doors are satisfied that at least cases 001 and 002 are free from undue influence, the likelihood is they will remain committed to the process. 284. The discussions that have been triggered in Cambodian society cannot be undone. The conversations that have commenced between generations cannot be un-said. The education of a nation about its own past cannot be unlearned. As we have seen, the ball has been set rolling â&#x20AC;&#x201C; it will be for others to determine how far it goes.

List of Sources Interviews and contacts (In alphabetical order) All interviews were conducted in Phnom Penh, Cambodia, save where indicated. Following tradition, all Cambodian interviewees are listed by their surname first.

ANG Chanrith, Legal Aid of Cambodia, 4 August 2010. Mychelle BALTHAZARD, Country Coordinator, Human Rights Centre of Berkeley, 9 August 2010. Dame Silvia CARTWRIGHT, Judge of the ECCC Trial Chamber, 5 August 2010. Andrew CAYLEY, ECCC International Co-Prosecutor, 5 August 2010. CHEA Leang, ECCC National Co-Prosecutor, 11 August 2010. CHHANG Youk, Director of DC-Cam, 12 August 2010. CHUM Mey, ECCC civil party, 6 August 2010. Thierry CRUVELLIER, journalist, 15 August 2010. Rowan DOWNING, Judge of the ECCC Pre-Trial Chamber, 7 August 2010. Rafael DOCHAU MORENO, Charge D’Affaires, EU delegation to the ECCC, 10 August 2010. Claudia FENZ, Reserve Judge of the ECCC Trial Chamber 5 August 2010. Douglas GILLISON, Executive Editor of the Cambodia Daily newspaper, 9 August 2010. Robert HAMMILL, ECCC civil party, 6 August 2010. HANG Chhaya, Khmer Institute for Democracy, 13 August 2010. KEAT Bophal, former head of the ECCC Victims’ Unit, 9 August 2010. H.E. KRANH Tony and Knut ROSANDHAUG, ECCC Acting Director and Deputy Director of Administration, 11 August 2010. Marcel LEMONDE, ECCC International Co-Investigating Judge 11 August 2010. Wendy LOBWEIN, head of ECCC Witness and Expert Support Unit, 11 August 2010. LONG Panhavuth, Project Officer of the Overseas Justice Initiative (OSJI), 4 August 2010. NIL Nonn, President of the ECCC Trial Chamber 5 August 2010. NY Chandy, VEN Pov, CHET Vanly, PICH Ang, HONG Kimsuon, SUN Sukhorn, Civil Party lawyers 6 and 10 August 2010. Paul OERTLY, Deputy Head, ECCC Victims’ Support Section, 13 August 2010. OU Virak, Cambodian Centre for Human Rights, 10 August 2010. PANH Rithy, filmmaker, 9 August 2010. Christophe PESCHOUX, Head, UNHCHR Phnom Penh 3 August 2010. PRAK Kimsan, President of the ECCC Pre-Trial Chamber, 11 August 2010.

Geoffrey ROBERTS, former ECCC legal assistant on the Ieng Sary Defence Team, responses to questions given by email 21 September 2010. Richard ROGERS, ECCC Principal Defender 11 August 2010. François ROUX, ECCC Co-Lawyer, email 29 September, 2010 Heather RYAN, ECCC Project Coordinator, OSJI, 3 August 2010. SENG Theary, civil party and civil society activist, 6 August 2010 Christoph SPERFELDT and OUENG Jeudy, Cambodia Human Rights Action Committee, 4 August 2010. Michelle STAGGS-KELSALL, ECCC Trial Monitor and UNHCHR ECCC Legacy Officer, 8 August 2010. Silke STUDZINSKY, International ECCC Civil Party lawyer, 5 August 2010. TAN Senarong, Former ECCC National Senior Assistant Co-Prosecutor, 7 August 2010. THUN Saray, President of ADHOC, the Cambodian Human Rights and Development Association, 13 August 2010. SARATH Yourn, OM Chariya, TANG Soeung Hun, MARIDETH Chaay, VANNARY Bou, psychologists, Transcultural Psycho-Social Organisation 6 August 2010. TY Srinna, ECCC Civil Party lawyer, 7 August 2010.

Additionally, the Consultant interviewed a number of other people who did not wish to be named. They have been referred to as a “source” in the footnotes.

Bibliography and other sources

Adams, Brad: Cambodia, 1997: Shock and Aftermath, Phnom Penh Post, 27 July 1997 accessed at http://www.hrw.org/ja/news/2007/07/27/cambodia-july-1997shock-and-aftermath. AFP: Convicted Khmer Rouge Jailer Hires New Lawyer, 6 August 2010, accessed at www.cambodiatribunal.org. Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, accessed at http://www.eccc.gov.kh/english/cabinet/agreement/5/Agreement_between_UN_an d_RGC.pdf. Amnesty International: Abolitionist and Retentionist Countries, accessed at http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries. Amnesty International: Amnesty International Report 2005: Cambodia, 25 May 2005 accessed at http://www.unhcr.org/refworld/country,,AMNESTY,ANNUALREPORT,KHM,,4 29b27e9a,0.html. Amnesty International: Ongoing Serious Human Rights Violations Must Be Addressed, September 2010, accessed at http://www.amnesty.org/en/library/asset/ASA23/007/2010/en/883b2bfa-f90241b7-bd63- b3638328373d/asa230072010en.pdf. Amnesty International: Report, 23 April 2003 accessed at http://www.amnesty.org/en/library/info/ASA23/005/2003. Arendt, Hannah: Eichmann in Jerusalem: A Report on the Banality of Evil, Penguin Classics, 1994. Asia Foundation: Judicial Independence Overview and Country-Level Summaries, accessed online at http://www.adb.org/documents/reports/Law_Policy_Pov_Red/Part2.pdf. Asian Development Bank: Cambodia Factsheet as at 31 December 2009, accessed at http://www.adb.org/Documents/Fact_Sheets/CAM.pdf. Bates, Alex: Cambodia’s Extraordinary Chamber: Is it the most effective and appropriate means of addressing the crimes of the Khmer Rouge? in Henham, Ralph and Behrens, Paul (eds) The Criminal Law of Genocide: International, Comparative and Contextual Aspects, Aldershot, Ashgate Publishing 2007. Bates, Alex: Transitional Justice in Sierra Leone: Analytical Report July 2010 prepared for the British Institute of International and Comparative Law, see www.biicl.org. BBC World News – Khmer Rouge Jailer Submits Appeal, August 25, 2010, accessed at http://www.cambodiatribunal.org/images/CTM/8.25.10%20khmer%20rouge%20j ailer%20duch%20submits%20appeal.pdf Becker, Elizabeth: When the War Was Over: Cambodia and the Khmer Rouge Revolution, Public Affairs, New York, 1998, p29. Bizot, François: The Gate, Vintage Publishers, 2004. Boyle, David: The Rights of Victims: Participation, Representation, Protection, Reparation in The Journal of International Criminal Justice 4 (2006) 307-313.

Brady, Brendan: Los Angeles Times – Cambodia’s first war crimes trial marred by flaws, December 6, 2009, accessed at latimes.com/news/nation-and-world/lafg-cambodia-trial6-2009dec06,0,792317.story. Burke-White, William: Preferences Matter: Conversations with Cambodians on the Prosecution of the Khmer Rouge Leadership, in Ramji, Jaya and Van Schaak, Beth (eds) Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts, The Edward Mellen Press, Lewiston, 2005. Cambodian Centre for Human Rights Press Release 1 February 2010: CHRAC Urges ECCC to Consider Victims’ Rights with Care Cambodian Centre for Human Rights Press Release 26 July 2010: The Duch Trial – A Good Example for the Cambodian Courts Cambodian Human Rights Action Committee (CHRAC) and REDRESS: Considering Reparations for Victims of the Khmer Rouge Regime: A Discussion Paper, November 2009 Cambodian Human Rights Action Committee (CHRAC) and the FIDH – The ECCC at a Crossroad: Making Victim Participation Meaningful Ahead of the Second Trial, Civil Society Memo, 13 September 2010. Cambodian Human Rights Action Committee (CHRAC): Victim Participation in the ECCC, Second Monitoring Report, 11 December 2009 Carmichael, Robert: Cambodia Remembers Victims of Khmer Rouge, Voice of America News, 20 May 2010, accessed at http://www.voanews.com/english/news/asia/Cambodia-Remembers-Victims-ofKhmer-Rouge-94506749.html. Carmichael, Robert: Duch Defence Pushes Self-Destruct Button, IPS, 28 November 2010, accessed at www.cambodiatribunal.org. Center For Social Development - The Court Watch Project, Annual Report MayDecember 2009, accessed at http://www.csdcambodia.org/legal_cwp/csd_cw_annual_report_2009_osi_11Jan2 010.pdf. Chanda, Nayan: Brother Enemy, the War after the War: A History of Indochina Since the Fall of Saigon, New York, Collier Books, 1986. Chandler, David: A History of Cambodia, 4th Edition, Westview Press, 2007. Chandler, David: Brother Number One: A Political Biography of Pol Pot, Chiang Mai, Silkworm Press, Revised edition, 1999. Chandler, David: Voices From S-21: Terror and History in Pol Pot’s Secret Prison Chiang Mai, Silkworm Press, 1999. Chy, Terith and Thomas, Sarah – Victim Participation Project – Focus on the Eastern Zone Purges, Visits to Daun Daok Village, Prey Veng Province April 2008 (DC-Cam) Cooperation Committee for Cambodia website http://www.ccccambodia.org/aboutus/summary-history.html. Cruvellier, Thierry From the Taylor Trial to a Lasting Legacy: Putting the Special Court Model to the Test ICTJ and Sierra Leone court monitoring Programme 2009. Cruvellier, Thierry: Duch trial ends with a twist, Radio Nederland Wereldomroep, 9 December 2009 accessed at www.cambodiatribunal.org.

De Nike, Howard; Quigley, John; Robinson, Kenneth: Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary: Documents from the Trial of Pol Pot and Ieng Sary Pennsylvania Studies in Human Rights, 2000. De Launey, Guy: Textbook Sheds Light on Khmer Rouge Era, BBC World News, 10 November 2009, accessed at http://news.bbc.co.uk/1/hi/world/asiapacific/8350313.stm. Diamond, Andrew: Public Comment on Proposed Changes to Civil Party Participation Before the ECCC, DC-Cam, Fall 2009, accessed online at http://www.dccam.org/Projects/Tribunal_Response_Team/Victim_Participation/P ublic_Comment_on_Proposed_Changes_to_Civil_Party_Participation_before_the _ECCC.htm. Documentation Centre of Cambodia The Duch Verdict: Khmer Rouge Tribunal Case 001 – Is Justice Being Served For the 14,000 Prisoners at S-21 (Tuol Sleng Prison)? September 2010. Documentation Centre of Cambodia: The Duch Verdict: A DC-Cam Report from the Villages July 26, 2010. Douglas, Lawrence: The Memory of Judgment: Making Law and History in the Trials of the Holocaust, New Haven, Yale University Press, 2001. Dunlop, Nic: The Lost Executioner: A Story of the Khmer Rouge, Bloomsbury Publishing, 2006. ECCC - Administration Revised Budget Estimates from 2005 to 2009, July 2008, available at http://www.eccc.gov.kh/english/annual_reports.aspx. ECCC - Defence - Appeal of Ieng Sary Against the Office of Co-Investigating Judge’s decision on the Defence Request for Information Concerning the Apparent Bias and Potential Existence of Conflict of Interest of Office of CoInvestigating Judge legal officer David Boyle, case 002/19-09-2007-ECCC-OCIJ (PTC) 6 June 2008, accessed at www.eccc.gov.kh. ECCC – Defence Application for Disqualification of Judge Marcel Lemonde, 002/19-09-2007-ECCC-OCIJ (PTC04) 29 October 2009. ECCC Internal Rules, accessed at http://www.eccc.gov.kh/english/internal_rules.aspx. ECCC - Joint Press Release by the National and International Judicial Officers at the conclusion of the first Plenary Session for the Internal Rules, 25 November 2006, accessed at http://www.eccc.gov.kh/english/cabinet/press/15/PRESSRELEASE_PLENARY_i n_ENG_FRENCH_.pdf. ECCC - Office of the Co-Investigating Judges - Closing Order Indicting Kaing Guek Eav alias Duch, criminal case file number 002/14-08-2006, 8 August 2008. ECCC - Office of the Co-Investigating Judges - Closing Order Indicting Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith, criminal case file number 002/19-00-2007, 15 September 2010. ECCC - Office of the Co-Investigating Judges - Provisional Detention Order in the case of Ieng Sary, case file number 002/14-08-2006, 14 November 2007. ECCC - Pre-Trial Chamber - Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71: Public Redacted Version, Disagreement Number 001/18-11-2008-ECCC/Pre-Trial Chamber, 18 August 2009, accessed at www.eccc.gov.kh.

ECCC - Pre-Trial Chamber - Decision on Civil Party Participation in Provisional Detention Appeals (20 March 2008) 002/19-09-2007-ECCC/OCIJ (PTC01) 6 (Pre-Trial Chamber, ECCC) ECCC – Pre-Trial Chamber Decision on Appeal against Closing Order indicting Kaing Guek Eav alias Duch, Case number 001/18-07-2007-ECCC-PTC, 5 December 2008. ECCC - Pre-Trial Chamber - Second decision on Nuon Chea's and Ieng Sary's appeal against OCIJ order on request to summons witnesses, 002/19-09-2007ECCC-OCIJ (PTC) 9 September 2010, accessed at www.eccc.gov.kh. ECCC - Pre-Trial Chamber – Decision on Khieu Samphan’s Appeal Against the Order on Translation Rights and Obligations of the Parties, Case 002/19-092007-ECCC/OCIJ (PTC11) 20 February 2009, accessed at http://www.eccc.gov.kh/english/cabinet/courtDoc/240/A190_I_20_EN.pdf. ECCC - Pre-Trial Chamber Decision on Appeal Against Provisional Detention Order of Ieng Sary case file number 002/19-09-2007 (PTC03), 17 October 2008. ECCC - Pre-Trial Chamber Decision on Appeal Against Provisional Detention Order of Kaing Guek Eav alias Duch, Case number 001/18-07-2007-ECCCOffice of Co-Investigating Judge (PTC01) dated 3 December 2007. ECCC - Pre-Trial Chamber Decision on Ieng Sary’s Appeal Regarding the Appointment of a Psychiatric Expert case 002/19-09-2007-ECCC-OCIJ, 21 October 2008, accessed at www.eccc.gov.kh. ECCC - Pre-Trial Chamber Second decision on Nuon Chea's and Ieng Sary's appeal against OCIJ order on request to summons witnesses, 002/19-09-2007ECCC-OCIJ (PTC) 9 September 2010, accessed via the ECCC website www.eccc.gov.kh. ECCC - Trial Chamber - The Co-Prosecutors v. KAING Guek Eav alias Duch, Case No. 001/18-07-2007/ECCC/TC, Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes, 26 July 2010. ECCC - Trial Chamber Decision on Civil Party Co-Lawyers’ Joint Request For a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning The Questioning of the Accused, Experts and Witnesses Testifying on Character, Case file No. 001/18-07-2007/ECCC/Trial Chamber, 9 October 2009, accessed at http://www.eccc.gov.kh/english/cabinet/courtDoc/452/E72_3_EN.pdf. ECCC - Trial Chamber Decision on Group1 - Civil Parties' Co-Lawyers' Request that the Trial Chamber Facilitate the Disclosure of an UN-OIOS Report to the Parties, Case 001/18-07-2007/ECCC/Trial Chamber, accessed at http://www.eccc.gov.kh/english/cabinet/courtDoc/437/E65_9_EN.pdf. ECCC - Trial Chamber Decision on Request for Release in the case of Kaing Guek Eav alias Duch, Case File No. 001/18-07-2007, 15 June 2009. ECCC - Trial Chamber The Co-Prosecutors v Kaing Guek Eav alias Duch, Case File No. 001/18-07-2007, Judgment of the Trial Chamber, 26 July 2010. ECCC - Trial Chamber, Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes, the case of Kaing Guek Eav alias Duch, 26 July 2010.

ECCC Defence - Application for Disqualification of Judge Marcel Lemonde, 002/19-09-2007-ECCC-OCIJ (PTC04) 29 October 2009, accessed at www.eccc.gov.kh. ECCC Defence - Defence Appeal Against the Decision To Deny the Request For Translation of Khieu Samphan’s Case File, case 002/19-09-2007-ECCC-OCIJ, 22 July 2008, accessed at www.eccc.gov.kh. ECCC Defence - Ieng Sary’s expedited appeal against the OCIJ’s decision refusing to accept the filing of Ieng Sary’s response to the Co-Prosecutors’ Rule 66 Final Submission and additional observations, and request for stay of the proceedings, 002/19-09-2007-ECCC-OCIJ (PTC), 6 September 2010, accessed at www.eccc.gov.kh. ECCC Defence - Khieu Samphan’s Request for Annulment for Abuse of Process, 002/19-09-2007-ECCC-OCIJ (PTC) 27 August 2009 accessed at www.eccc.gov.kh. ECCC Defence - Letter of Nuon Chea’s Lawyers on Lack of Confidence in the Judicial Investigation, 002/19-09-2007-ECCC-OCIJ (PTC) 15 October 2009, accessed at www.eccc.gov.kh. ECCC Pre-Trial Chamber - Written Version of Oral Decision of 1 July 2008 on the Civil Party's Request to Address the Court in Person (3 July 2008) 002/19-092007-ECCC/OCIJ (PTC03) (Pre-Trial Chamber, ECCC) ECCC Press Release - Acting International Co-Prosecutor requests investigation of additional suspects, 8 September 2009, accessed at http://www.eccc.gov.kh/english/news.view.aspx?doc_id=310. ECCC Press Release – Statement of the Co-Prosecutors, 5 January 2009, accessed at http://www.eccc.gov.kh/english/cabinet/press/84/Statement_OCP_05-0109_EN.pdf. ECCC Press Release - Ninth Meeting of the Friends of the ECCC, 30 November 2007, accessed at http://www.eccc.gov.kh/english/news.view.aspx?doc_id=80. ECCC Press Release – Eighth Plenary Session Concludes, 17 September 2010, accessed at http://www.eccc.gov.kh/english/news.view.aspx?doc_id=370. ECCC Press Release – Joint Statement from the Co-Investigating Judges, 9 June 2010, accessed at http://www.eccc.gov.kh/english/cabinet/press/156/PROCIJ(JUne2010.pdf. ECCC Press Release – Statement of Co-Prosecutors, 16 August 2010, accessed at http://www.eccc.gov.kh/english/cabinet/press/164/OCP_ECCCPR_16Aug2010_(Eng).pdf ECCC Press Release – Statement of the Co-Prosecutors 18 July 2007, accessed at www.eccc.gov.kh. ECCC Press Release 16 September 2010 – Co-Investigating Judges Indict Khieu Samphan, Nuon Chea, Ieng Sary and Ieng Thirith, accessed at http://www.eccc.gov.kh/english/news.view.aspx?doc_id=369. ECCC Press Release from the Defence Support Section, 9 July 2010, accessed at ttp://www.eccc.gov.kh/english/cabinet/press/157/DSS-PR-9July2010(Eng).pdf ECCC Trial Transcript - Chhim, Dr Sotheara: 25 August 2009 - The CoProsecutors v Kaing Guek Eav alias Duch, Case File No. 001/18-07-2007. ECCC website – ECCC Virtual Tribunal, accessed at http://www.eccc.gov.kh/english/virtual_tribunal.aspx.

Eng, Kok-Thay Translation Problem at the ECCC, DC-Cam Researcher, April 2009, accessed at http://www.cambodiatribunal.org/images/CTM/translation%20problem%20at%20 eccc%204_2009.pdf?phpMyAdmin=KZTGHmT45FRCAiEg7OLlzXFdNJ4. Etcheson, Craig: After the Killing Fields: Lessons from the Cambodian Genocide, Praeger Publishers, Westport, 2005. Etcheson, Craig: The Rise and Demise of Democratic Kampuchea, Boulder, Westview Press, 1984, p119. European Union Election Observer Mission, Preliminary Statement, 29 July 2008, accessed at http://www.eueomcambodia.org/English/PDF/preliminary/EU%20EOM%20Preli minary%20Statement%2029%20July_eng.pdf. European Union Statement at the United Nations Pledging Conference for the ECCC, Statement by Peter Schwaiger, Deputy Head of the Delegation of the EU to the UN on 25 May 2010, accessed at http://www.europa-euun.org/home/print.asp?1=1&lg=5 European Union Statement, Delegation of the European Union to the Kingdom of Cambodia, Press Release – EU Gives Two Million Euros to Khmer Rouge Tribunal, 26 July 2010, accessed at http://www.delkhm.ec.europa.eu/en/whatsnew/jul_26_2010.htm Falby, Patrick: Khmer Rouge prison chief sacks his international lawyer, AFP, 9 July, 2010, accessed at www.cambodiatribunal.org. Flag Bulletin, issue 133, (1990) accessed at http://flagspot.net/flags/kh_hstry.html. Fletcher, Laurel and Weinstein, Harvey with Rowen, Jamie: Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective in Human Rights Quarterly 31 (2009) 163-220 Ford, Stuart: How Leadership in International Criminal Law is Shifting From the U.S to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts, Saint Louis Law Journal, 2010, accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1674063. Gillison, Douglas: Tribunal Indicts Four in Cambodian Genocide, Phnom Penh Post, September 17, 2010, accessed at http://www.time.com/time/world/article/0,8599,2019887-2,00.html. Global Witness: Cambodia’s Family Trees: Illegal Logging and the Stripping of Public Assets by Cambodia’s Elite, June 2007, accessed at http://www.globalwitness.org/media_library_detail.php/546/en/cambodias_family _trees. Harris, Ian: ‘Onslaught on Beings’: A Theraveda Buddhist Perspective on Accountability for Crimes Committed in the Democratic Kampuchea Period, in Ramji, Jaya and van Schaak, Beth (eds): Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts, New York, the Edward Mellen Press, 2005. Heder, Steve and Tittemore, Brian: Seven Candidates For Prosecution: Accountability for the Crimes of the Khmer Rouge, War Crimes Research Office (American University) and Documentation Centre of Cambodia, 2004.

Heder, Steve: Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative Perspective in Ramji, Jaya and van Schaak, Beth: 2005. Heller, Kevin Jon Completion Strategies and the Office of the Prosecutor, Leuven Centre for Global Governance Studies Working Paper 2009 accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1425923. Henham, Ralph and Behrens, Paul (eds): The Criminal Law of Genocide: International, Comparative and Contextual Aspects, Aldershot, Ashgate Publishing 2007. Ingadottir, Thordis: Financial Challenges and their Possible Effects on Proceedings, 4 Journal of International Criminal Justice, 296-99 (2006). International Centre for Transitional Justice, Press Release: Cambodia: First Verdict a Victory But Some Victims Left Disappointed July 26, 2010, accessed at http://www.ictj.org/en/news/press/release/3919.html. International Centre for Transitional Justice, Press Release: Q&A: Cambodia’s First Khmer Rouge Trial July 26, 2010, accessed at http://www.ictj.org/en/news/features/3913.html. International Centre for Transitional Justice: Closing the International and Hybrid Criminal Tribunals: Mechanisms to Address Residual Issues Briefing Paper, 1 February 2010. International Centre for Transitional Justice: Making an Impact: Guidance on Designing Effective Outreach Programs for Transitional Justice held at the ECCC in March 2010 accessed at www.ictj.org. International Centre for Transitional Justice: Outreach Strategies in International and Hybrid Courts, Report of the ICTJ-ECCC Workshop, Phnom Penh, March 35, 2010, ICTJ Research Unit, April 2010, accessed at www.ictj.org/static/Publications/ICTJ_Research_Outreach_ECCCWorkshop_Apr 2010.pdf. International Centre for Transitional Justice: Report on Cambodia, updated Jul 2010, accessed online at http://www.ictj.org/en/where/region3/642.html. International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, at http://www2.ohchr.org/english/law/ccpr.htm, (the “ICCPR”). International Criminal Court website, accessed at http://www.icccpi.int/Menus/ICC/Situations+and+Cases/. International Federation for Human Rights – The ECCC At A Crossroad: Making Victim Participation Meaningful Ahead of the Second Trial, Civil Society Memo, 13 September 2010, accessed at http://www.fidh.org/IMG/pdf/Civil_Society_Memo_on_victim_Participation_in_ English_13-09-10.pdf. International Federation for Human Rights: FIDH-ADHOC-LICADHO Comments on Victim Participation at the ECCC, January 2010, accessed at http://www.fidh.org/IMG/pdf/kh2901a.pdf. Kamhi, Alison: Private Funding for Public Justice: The Feasibility of Donations to the Cambodian Tribunal, Harvard International Law Journal, Vol 48, number 2, Summer 2007, pp 581-591

Kiernan, Ben: Cambodia’s Twisted Path to Justice, 1999, accessed at http://www.historyplace.com/pointsofview/kiernan.htm. Kiernan, Ben: The Pol Pot Regime: Race, Power and Genocide in Cambodia under the Khmer Rouge, 1975-1979, Yale University Press, New Haven, 2nd edition, 2002. Ksem Ksan, Declaration – United in the quest for justice, social harmony, a culture of peace and spiritual healing, 20 March 2010, accessed at http://www.ksemksan.org/Slogan%20and%20History/English%20slogan%20and %20history.pdf. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 10 August 2001, amended 27 October 2004: accessed at http://www.eccc.gov.kh/english/cabinet/law/4/KR_Law_as_amended_27_Oct_20 04_Eng.pdf. Lejmi, Mohamed Ali – Prosecuting Cambodian Genocide: Problems Caused by the Passage of Time since the Alleged Commission of Crimes, Journal of International Criminal Justice 4 (2006) 300-306. Linton, Suzannah: Reconciliation in Cambodia, Documentation Centre of Cambodia, Phnom Penh, 2004. Marshall, Andrew: “The Khmer Riche: Making a Killing in Cambodia”, The Sunday Times Magazine, 15 February 2010, accessed at http://www.timesonline.co.uk/tol/news/world/asia/article7023700.ece. McGonigle, Brianne: Two for the Price of One: Attempts by the ECCC to Combine Retributive and Restorative Justice Principles, Leiden Journal of International Law, 22 (2009) 127-149. Mendez, Parinaz Kermani: The New Wave of Hybrid Tribunals: A Sophisticated Approach to Enforcing International Humanitarian Law or an Idealistic Solution with Empty Promises? Criminal Law Forum (2009) 20: 53-95. Mills, Nicolaus and Brunner, Kira (eds) The New Killing Fields: Massacre and the Politics of Intervention, New York, Basic Books, 2002, Mohan, Mahdev: Schisms in Humanitarianism: The Khmer Rouge Tribunal’s First Hearing, Asia Journal of Comparative Law, Volume 4, Issue 1, 2009, Article 10. Mohan, Mahdev: The Paradox of Victim-Centrism: Victim Participation at the Khmer Rouge Tribunal, International Criminal Law Review 9 (2009) 733-775. Overseas Justice Initiative: Political Interference at the Extraordinary Chambers in the Courts of Cambodia, July 2010, accessed at http://www.soros.org/initiatives/justice. Overseas Justice Initiative: Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, November 2009 Update, accessed at http://www.soros.org/initiatives/justice. Overseas Justice Initiative: Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, May 2009 Update, accessed at http://www.soros.org/initiatives/justice. Overseas Justice Initiative: Recent Developments at the Extraordinary Chambers in the Courts of Cambodia March 2010 Update, accessed at http://www.soros.org/initiatives/justice.

100

Overseas Justice Initiative: Recent Developments at the Extraordinary Chambers in the Courts of Cambodia October 2008 Update, accessed at http://www.soros.org/initiatives/justice. Overseas Justice Initiative: Recent Developments at the Extraordinary Chambers in the Courts of Cambodia September 2010 Update, accessed at http://www.soros.org/initiatives/justice. Phnom Penh Post – KRT Civil Parties Plan Appeal, August 24, 2010, accessed at http://www.cambodiatribunal.org/images/CTM/8.24.10%20krt%20civil%20partie s%20plan%20appeal.pdf. Raab, Dominic Evaluating the ICTY and its Completion Strategy, Journal of International Criminal Justice 2005 3(1) 82-102. Raab, Michaela and Poluda, Julian: Justice for the Survivors and for Future Generations, ADHOC’s ECCC / ICC Justice Project Report, March 2010, accessed at http://www.adhocchra.org/article.php?language=english&art_id=155&currentpage=1. Ramji, Jaya and van Schaak, Beth (eds): Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts, New York, the Edward Mellen Press, 2005. Ratner, Steven and Abrams, Jason – Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, Second Edition, Oxford 2005. Romano, Cesare P. R., Nollkaemper, Andre and Kleffner, Jann K. (eds.): Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (2004) Royal Government of Cambodia, National Assembly Debates, October 4 and 5, 2004 accessed in DC-Cam Publication Searching for the Truth, Special English Edition Third Quarter 2004, pp26-55. Shawcross, William: Lessons of Cambodia in Mills, Nicolaus and Brunner, Kira (eds) The New Killing Fields: Massacre and the Politics of Intervention, New York, Basic Books, 2002. Shawcross, William: Sideshow - Kissinger, Nixon and the Destruction of Cambodia, New York: Simon and Schuster, 1979. Short, Philip: Pol Pot - The History of a Nightmare, John Murray, 2004. Skilbeck, Rupert: Defending the Khmer Rouge, International Criminal Law Review, 8 (2008) 423-445. Staggs-Kelsall et al, Michelle – Lessons Learned from the Duch Trial: A Comprehensive Review of the First Case Before the ECCC, Asian Justice Initiative, the KRT Trial Monitoring Group December 2009, accessed at http://www.ocf.berkeley.edu/~changmin/documents/Lessons%20Learned%20fro m%20the%20Duch%20Trial_MRSK_FINAL.pdf. Stanton, Gregory Kampuchean Genocide and the World Court, Connecticut Journal of International Law, Vol 2, No 2, Spring 1987 pp341-348. State of Cambodia Law of Criminal Procedure 8 March, 1993, accessed at http://www.cdpcambodia.org/soclaw.asp. Supreme National Council of Cambodia - Provisions Relating to the Judiciary and Criminal Law Applicable in Cambodia During the Transitional Period, 10

101

September 1992, accessed at http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=6154. Transparency International - Corruption Perception Index 2009, accessed at http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_ table. U4 Anti-Corruption Resource Centre – Overview of Corruption in Cambodia, U4 Expert Answer, 23 March 2009, accessed at www.u4.no/helpdesk/helpdesk/query.cfm?id=197. Un, Kheang and Ledgerwood, Judy: Is the Trial of Duch a Catalyst for Change in Cambodia’s Courts? - Asia Pacific Issues, Analysis from the East-West Center, No 95, June 2010. Un, Kheang: Cambodia’s 2008 Election: the end of the opposition? published by Open Democracy, 5 August 2008, accessed at http://www.opendemocracy.net/print/45705. United Nations - Report of the United Nations Special Representative of the Secretary-General for Human Rights in Cambodia, United Nations Human Rights Council, 31 August 2009, UN Doc A/HRC/12/40, accessed at http://cambodia.ohchr.org/WebDOCs/DocReports/1-SR-SRSG-Reports/A-SRCMB31082009E.pdf. United Nations Commission on Human Rights Report Analysis of the Human Rights Situation in Democratic Kampuchea, U.N. Doc. E/CN.4/Sub.2/414/Add. 110 (1978). United Nations Commission on Human Rights: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“Joinet Principles”) UNCHR Res 2005/35, 19 April 2005 United Nations Development Programme - Audit of Human Resources Management at the Extraordinary Chambers in the Courts of Cambodia, (4 June 2007) Report No. RCM0172. United Nations Development Programme’s Human Development Report 2009, accessed at http://hdrstats.undp.org/en/countries/country_fact_sheets/cty_fs_KHM.html. United Nations OHCHR Rule-of-Law Tools For Post-Conflict States: Maximising the Legacy of Hybrid Courts, Office of the United Nations High Commissioner for Human Rights, New York and Geneva, 2008. United Nations Press Statement by UN Legal Counsel Hans Corell at a press briefing at UN Headquarters in New York, 8 February 2002, accessed at http://www.un.org/News/dh/infocus/cambodia/corell-brief.htm. United Nations Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135, accessed at http://www.unakrtonline.org/Docs/GA%20Documents/1999%20Experts%20Report.pdf. United Nations Report of the OHCHR in Cambodia for 2008-2009, accessed at http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/KHSummary0809.aspx. University of California, Berkeley, Human Rights Centre – So We Will Never Forget: A Population-based Survey on Attitudes About Social Reconstruction and the ECCC, January 2009, accessed at http://hrc.berkeley.edu/pdfs/So-We-WillNever-Forget.pdf.

102

US State Department Report on Human Rights in Cambodia in 2006: accessed at http://www.humantrafficking.org/countries/cambodia. US State Departmentâ&#x20AC;&#x2122;s background notes to Cambodia, updated 23 July 2010, accessed at http://www.state.gov/r/pa/ei/bgn/2732.htm. Vaz, Anne Niroshika: The Path To Reconciliation In Cambodia, International Centre for Transitional Justice, 20 August 2009, accessed at http://www.ictj.org/en/news/coverage/article/2981.html. Vickery, Michael: Cambodia 1975-1982, University of Washington Press, 2000. Voice of America Khmer News â&#x20AC;&#x201C; Sok An, Donors Meet Over Tribunal Funding Woes 7 September 2010, accessed at http://www.voanews.com/khmerenglish/news/Sok-An-Donors-Meet-Over-Tribunal-Funding-Woes102345844.html. Wallance, Julia: Duch Stuns Trial With Request To be Released, The Cambodia Daily November 28-29, 2009 accessed at www.cambodiatribunal.org. Yesberg, Kate: Accessing Justice Through Victim Participation at the Khmer Rouge Tribunal, Victoria University of Wellington Law Review, 40 (2009) 555579.