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The Limits of Co-operation and Judicial Independence: Resolving the Question of ‘How Low Do You Go?’ in the Khmer Rouge Trials’ Bicephalous Prosecution
PADRAIG MCAULIFFE[∗]
Abstract
On 18 August 2009, a Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered what it termed ‘Considerations’ on a dispute between the Cambodian and international Co-Prosecutors on whether to allow formal judicial investigation of five additional suspects.[1] The international Co-Prosecutor advocated the advancement of investigations, while his domestic colleague resisted. The international judges on the Pre-Trial Chamber unanimously agreed prosecution should go ahead, while the Cambodian judges were likewise unified in finding that it should not. As such, it highlights the fault-line in the hybrid structure of the ECCC, the repercussions from which might bedevil additional prosecutions. The Considerations are of significance outside the Cambodian context as they represent the first ever instance of a judicial chamber considering a formal dispute between international and domestic prosecutors at an internationalized tribunal.
The ECCC is a hybrid court located within the Cambodian court system to try crimes committed by figures in the Khmer Rouge (KR) regime which ruled between 17 April 1975 and 6 January 1979. It mixes a minority of international judges and prosecutors with a majority or parity of domestic equivalents, and is empowered to try crimes under international law and under the 1956 Penal Code.[2] At present, two cases are underway. The Duch case (Case 001), was completed on 26 July 2010 when Kaing Guek Eav was sentenced to 30 years imprisonment for crimes against humanity over the mass murder of 15,000 men, women and children at Tuol Sleng prison.[3] Four other individuals are charged in Case 002 and are expected to go on trial in mid-2011.[4] While other examples of internationalised tribunals such as those in Sierra Leone, East Timor and Kosovo have been de jure or de facto under UN control, the consensus among the UN, Cambodia and commentators is that the trials are primarily a domestic mechanism. While this would appear to accord with the movement away from international primacy (the formerly prevailing wisdom that exclusion of nationals of the country most affected from trial would preserve impartiality, objectivity and neutrality) to complementarity (where domestic prosecutions are a priori preferred, with international trials or personnel employed only where domestic courts are incapable or unwilling), Cambodian predominance was long resisted by the UN when negotiating for the KR trials because of fears over the integrity of the process. The circumstances surrounding the Considerations and the Considerations themselves illustrate the difficulties inherent in a hybrid tribunal dominated by domestic jurists in an environment where the independence of the courts is minimal.
This article examines the possible realisation of one of the primary fears of the UN figures who negotiated the ECCC apparatus, namely interference by the government to limit the number of prosecutions to five of the most culpable figures, the judicial response to the problem and the likely repercussions of the Considerations. This article explains how this has occurred at the ECCC in its first two years. It begins by reviewing the history of the Cambodian conflict that gave rise to the ECCC and how the post-conflict legacy influenced domestic political interest in restricting wide accountability. It then examines the torturous process of negotiating the structure of the ECCC to balance UN and Cambodian preferences and the now-tested dispute resolution mechanisms employed to settle conflicts that emerge between international imperatives and those of the Government in Phnom Penh. The Considerations of the Pre-Trial Chamber is then analysed in detail before some suggestions are offered as to the likely progress of future prosecutions at the Extraordinary Chambers.
Selectivity exists in every legal system, often the result of resource constraints but most often explained by lack of evidence, an understanding that the defendant’s actions were justifiable or the perceived insignificance of the crime.[5] After mass criminality, these conditions do not often obtain — evidence is abundant while the nature of ius cogens crimes are such that they can be neither understood nor perceived as insignificant. Nevertheless, as Cryer notes, ever since the Nuremberg and Tokyo trials after World War II, international criminal law has been more susceptible to claims of selectivity than domestic law, be it in terms of those enforcing it (the tu quoque and victor’s justice arguments), the law applied and the general principles of liability and defence.[6] Within this general debate on selectivity, the more particular question of ‘how low do you go?’ within the criminal hierarchy has been one that has concerned all manifestations of international criminal justice. Notwithstanding our intuitions about the link between the rule of law and transitional accountability, the experience of transitional justice in countless post-conflict states that successfully mediated the passage from repression to peace has often been partly (and sometimes paradigmatically) contradictory to what is understood as full accountability, primarily because post-conflict conditions are such that total accountability would imperil the transition by fuelling revanchism from elements of the prior regime. While advocates of trials posit that states should be willing to take risks to ensure accountability,[7] others such as Landsman realise that ‘many fledgling democracies have simply not had the power, popular support, legal tools or conditions necessary to prosecute effectively’.[8] In transition, there exists ‘a close relationship between the type of justice pursued and the relevant limiting political conditions’.[9] Even where political conditions are not so limiting as to result in impunity or amnesty, the sheer scale of mass crimes against humanity is such that prosecutions will almost certainty require selectivity in terms of indictment.[10] The most extreme example is Rwanda, where as many as 150,000-200,000 people are suspected of involvement in genocide. Even here, the Government’s zeal for prosecution has had to bow to selectivity.[11] It is usually the case that instigators of violence are prosecuted (the paradigmatic example being Sierra Leone where three of the most senior offenders in the three factions were tried) because they cause, organise and benefit from mass criminality.[12] Here, the guiding principle is a rough proportionality starting with the most senior offenders and working downwards through gradations in culpability.[13] The argument that selectivity in certain post-conflict ecologies is necessary or unavoidable is inarguable. It is even argued that this necessity is in keeping with the rule of law. Teitel, for example, contends that ‘[t]he normative claim that punishment advances the rule of law does not necessarily justify punishing all offenders. Indeed, the aims of defending democracy and affirming the rule of law can well be served by exemplary prosecutions’.[14]
Nevertheless, the question remains of where the line should be drawn. Should the foot soldiers who merely followed orders be prosecuted, or should responsibility be limited to those at the top of the chain of causation? What about those figures in the middle who may have distinguished themselves by the brutality with which they executed the tasks delegated from above and perpetrated by those below? Often it will be the case that these intermediate figures are those whom an incoming regime will feel a need to either incorporate into the new state structure or to mollify on account of their force of arms or influence. This can give rise to knotty ethical, moral and legal dilemmas about whether they should or should not be prosecuted in the interests of preserving the peace. While the hybrid courts in East Timor, Sierra Leone and Kosovo saw wide disparities in numbers prosecuted (examined in Part VI), this was more the product of impartial assessment by foreign prosecutors or disinterest than a more corrosive process of governmental interference. Prosecution policy in times of transition is always intensely political, but in Cambodia the UN has been involved in, and added its legitimacy to, an institution over which its influence in delimiting accountability has been diminished by domestic political imperatives.
The tragic history of Cambodia is relatively well known, but it bears brief repetition.[15] Cambodia achieved independence from France in 1953. From 1963 onwards, American bombing of Viet Cong supply routes caused many casualties and helped to tip national sympathies towards the rebel Communist KR forces under the command of Pol Pot. In April 1975, the US-supported Lon Nol regime fell to the KR, five years after King Norodom Sihanouk was overthrown in a right-wing coup. The KR tortured and murdered any ethnic, political or social groups or sub-groups perceived as dangerous. In the three years and nine months of their rule (‘Democratic Kampuchea’), it is estimated that as many as two million Cambodians perished (nearly one-quarter of the population), though certainty is elusive.[16] These activities were oriented towards the creation of a revolutionary ‘clean’ social system where all pre-existing social, economic and cultural institutions were abolished. The population was transformed into a collective workforce to create a classless agrarian utopia. Forced displacement of 5 million people, forced labour in inhumane conditions, extensive purges within the ranks of the KR and attacks on enemies of the revolution like foreigners and intellectuals were the primary means by which the revolution was implemented. Detention and torture centres were numerous. The most notorious was the Tuol Sleng prison, where only seven of the estimated 14,000 detained are known to have survived.[17] When these activities and the death toll from over 20,000 mass graves are take into account, it becomes clear that a mass decimation occurred within a religiously and ethnically homogenous society, referred to by some scholars as auto-genocide.[18] In 1978, Vietnam invaded, toppled Democratic Kampuchea and the following year succeeded in installing the friendly People’s Republic of Kampuchea group which later developed into the current ruling Cambodian People’s Party (CPP). Even though the new regime was relatively popular and certainly less abusive than its predecessor, from 1979 to 1982 the UN General Assembly, antagonistic to a USSR-allied Vietnam, granted the Cambodian seat in the body to the KR and thereafter to a coalition of KR, royalists and right-wingers, which planted the seed of national ambivalence towards the UN. It was this alliance that continued to wage war on the Hanoi-supported CPP during the 1980s.
With the end of the Cold War, international support for the warring sides dried up. The 1991 Paris Peace Agreement led to a period of UN Transitional Authority in Cambodia (UNTAC) which organised parliamentary elections in 1993.[19] After the KR boycotted the election and returned to insurgency, a coalition of the CPP and the royalist FUCINPEC shared power until 1997, when a coup by the former ousted the latter with a cost of the deaths of nearly forty political opponents of the now-unchallenged CPP Prime Minister Hun Sen, a former KR cadre who fled during a purge and returned to oust it.[20] Though the Paris agreement marginalised the KR politically, it did not defeat them militarily. Peace was only eventually secured by defections from the KR in return for de facto amnesty, the right to settle in semi-autonomous border zones and, crucially, some high-level appointments in the current administration. Under this policy, high level indictees currently before the ECCC could live freely in Phnom Penh.[21] By 1996, the KR were effectively vanquished.[22] The most notable pardon (and amnesty for future charges) was that for Ieng Sary, the deputy Prime Minister under KR rule.[23] In 1979, a Peoples’ Revolutionary Tribunal convicted the ‘Pol Pot – Ieng Sary’ clique in absentia for crimes of genocide and sentenced them to death.[24] Sary, as noted, was pardoned by royal prerogative, while Pol Pot died under house arrest in 1998. The amnesties highlight two relevant phenomena. The first is the consistent position that amnesty is best, in which the international community was complicit. [25] The second is that KR revanchism is considered a lingering threat as they remain armed in the border areas and are deemed to require painful accommodation instead of assertive punishment.[26] It is clear from the fact that until the late 1990s no Khmer Rouge had ever been arrested and brought before a criminal court for crimes committed in the era of Democratic Kampuchea since the aforementioned show-trial that accountability was deemed more problematic than the abundant pardons issued. This was so notwithstanding the actuality that the CPP enjoyed the preponderance of local power and had fought viciously against the KR for two decades.
The most prevalent justification for limiting accountability is because national reconciliation has advanced so far since the Paris Peace Agreement, too many prosecutions would jeopardise a fragile peace. State institutions remain weak and many feel the country might lurch back into war.[27] It is estimated that more than 20,000 ex-Khmer Rouge soldiers and workers live freely in the country.[28] Prime Minister Hun Sen has repeatedly claimed that anything more than minimal prosecution of the KR would risk a return to civil war and instead urges Cambodia to ‘dig a hole and bury the past’.[29] In September 1999, members of the Cambodian Government who were formerly KR figures issued a statement that there might be a return to civil war if a tribunal was pursued.[30] It appears that negotiations for a tribunal with the UN were only initiated by Hun Sen to pressure unreconciled remnant KR forces to dismantle and accommodate themselves to the CPP, though the growth of international opinion cannot be discounted as an impetus either.[31] However, while a Group of Experts set up to make recommendations to the UN for establishing trials advocated removing the trials from Cambodia, fearing ‘the facilities might well face threats from various groups favourable to one side or another’, they emphatically discounted the possibility that trials might lead to a recurrence of civil war.[32] After the Cambodian Government accepted in principle the desirability of trials and after agreeing legally to do so with the UN, the debate has changed from whether or not to have trials to how many should be tried and the related question of who should control the process.
While the aforementioned Group of Experts recommended that 20-30 figures be prosecuted, the consistent position of Hun Sen and the CPP leadership has been that trials should be highly selective and limited to four or five senior KR leaders who have already been tried in the court of public opinion.[33] The reason for this restrictive attitude remains unclear, though the risk of instability outlined above may be one possible reason. Less laudably, it has been alleged that the CPP’s reticence is best explained by the fact that most of the leading CPP figures began their careers as mid-level or low-ranking KR cadres who later became dissident and rebelled.[34] Having served as a regional battalion commander, it is likely that Hun Sen was too junior to meet the ECC’s personal jurisdiction of ‘most responsible’ for crimes.[35] Similarly, the Minister for Finance Keat Chhon used to be an ambassador for the Pol Pot regime, the President of the National Assembly Heng Samrin was formerly commander of the Eastern Zone in Democratic Kampuchea, while the Senate President Chea Sim was the party secretary in the same area.[36] While there is no suggestion that these individuals would constitute appropriate indictees, Heder suggests the shackles placed on the ECC are borne less of a desire to shield CPP figures from prosecution than to save them from embarrassing testimony from their former associates if there were more trials that delved deeper into the KR apparatus.[37] Attempts to refute their KR links might in turn highlight the CPP’s connections to Cambodia’s historic antagonists, Vietnam.[38] It may also be the case that in a state where there are pervasive election irregularities[39] and regular bouts of repression by the government,[40] the CPP may not be keen on establishing a precedent of accountability for political violence. As Lieberman puts it, ‘it may be that Hun Sen is not eager to establish accountability as a standard of Cambodian governance’.[41]
On the other hand, given the scale of KR criminality where practically every family and community was in some way affected, it should come as no surprise to find out that ordinary Cambodians overwhelmingly endorse accountability. In a 2008 poll, 94% of the people polled favoured the ECCC trials.[42] Similarly, Etcheson notes that a ‘solid majority’ of the rank-and-file members of the CPP support a tribunal.[43] Nevertheless, it became apparent early in the negotiation process that given the political imperatives described above, the independence of any putative tribunal to prosecute freely may be jeopardised by too great an influence by the Government on domestic court system in which it would be imbedded. It is to this danger that attention now turns.
Though the UN Groups of Experts emphatically concluded that ‘the Cambodian judiciary presently lacks three key criteria for a fair and effective judiciary: a trained cadre of judges, lawyers and investigators; adequate infrastructure; and a culture of respect for the process’,[44] it was this system to which the Extraordinary Chambers were ultimately grafted onto. This was the product of the determined assertion of national dominance of KR trials by the government.
The presence of international judges and prosecutors (and defence counsel, where provided) in either a majority or minority in a tribunal can alleviate any fears of impartiality or lack of independence as regards national judges on the part of the local population. Because international personnel are removed from domestic politics and because they are paid by the UN in whole or in part, the process is thought to be considerably less likely to be manipulated by governments and other factions. While purely domestic proceedings are prone to capture by political or ethnic interests, mixed hybrid proceedings are expected to be ‘insulated from domestic political factors’.[45] Nevertheless, the position of the government to retain Cambodian dominance is not, on the face of it, objectionable and accords with emerging trends of complementarity, where domestic prosecutions are a priori preferred, with international trials employed only where domestic courts are incapable or unwilling. As a country with a history of French, Japanese, American and Vietnamese imperial domination, Cambodian sovereignty is a ‘lodestone’ of immense psychological and emotional potency and requires Cambodian control of the trials of its nationals.[46] Though doubts have consistently been expressed about the independence of the Cambodian judiciary, attempts by the UN to minimise domestic participation in the tribunal risked denying the Cambodian people a significant role in the process of retribution and accountability.[47] The CPP has a legitimate fear that a foreign-dominated process could undermine their legitimacy.
By announcing that the Cambodian judiciary is unreliable and taking all possible measures to minimize its room for manoeuvre, critics of the proposed tribunal would deny the Cambodian government an opportunity to contribute meaningfully to the search for justice.[48]
It should be noted that the indulgence by the international community of the KR in the 1980s has diminished Cambodian faith in the bona fides of the UN.[49] Hun Sen has also argued that under the Genocide Convention, Cambodia legally has the primary obligation to try the crimes listed therein within its jurisdiction.[50]
None of this is to say that the grave doubts of the UN in entrusting any, some, or all responsibility for the trials to Cambodian jurists were not justified. The main criticisms of the Cambodian courts are based on two axes: competence and independence. As regards competence, the government initially conceded when requesting UN assistance in 1997 for KR trials that Cambodia ‘does not have the resources or expertise to conduct this very important procedure’.[51] The systematic murder and persecution of intellectuals and professionals by the KR resulted in the deaths of many of those who made up the court organisation.[52] The Cambodian justice system has never recovered. Millions of dollars of legal development and the UNTAC administration did little to improve what at times has been a barely literate judiciary.[53] The UN Group of Experts found that the Cambodian judiciary lacked ‘a trained cadre of judges, lawyers and investigators’ or adequate infrastructure,[54] while the judges lacked the international criminal law and procedural expertise to serve on any putative tribunal.[55] World Bank data showed that only one in six judges and one in ten prosecutors had law degrees, while most had less than five years of experience.[56] Nevertheless, after an initial UN proposal for a fully international court, Hun Sen became adamant that a fully or predominantly Cambodian process was the only appropriate avenue for trials and that Cambodia was competent to do so.[57]
The greater concern, however, is the susceptibility of the courts to political pressure. Though the Cambodian Constitution provides for the independence of the judiciary, formal assertion of autonomy on paper is never enough.[58] The UN-Cambodia ECCC Agreement demands that its judges, investigators and prosecutors ‘be independent in the performance of their functions, and shall not accept or seek any instructions from any government or any other source’, it is clear the environment with Cambodian actors in the majority is not conducive to impartial functioning.[59] Having reviewed their interviews and the reports of NGOs, the UN Group of Experts recommended that Cambodian jurists play no part in the KR trials, finding that even if concerns over professional competence could be assuaged, ‘the routine subjection of judicial decisions to political influence would make it nearly impossible for prosecutors, investigators and judges to be immune from such pressure in the course of what would undoubtedly be very politically charged trials’.[60] This conclusion was based on credible observations that judges were too closely associated with the CPP. Former UNTAC Special Prosecutor Mark Plunkett has labelled Cambodian judges as ‘party hacks and flunkies’ who refuse to issue warrants in politically sensitive cases,[61] while Linton observes that judicial appointments are divided in quotas between the main parties, with the CPP predominant.[62] Hun Sen exercises tight personal control over the courts.[63] Appointment to the ECCC of all international and domestic legal personnel is controlled by the Cambodian Supreme Council of the Magistracy, which is run by the Ministry of Justice with little concern for the separation of powers.[64] Prosecutors and investigatory judges are similarly subject to political interference[65] and physical threats by the security forces.[66] The Group of Experts furthermore argued that the judges’ professional futures and families could come under threat.[67] One former Special Representative for the UN Secretary-General for Human Rights in Cambodia has goes so far as to argue that impunity is one of Cambodia’s most serious problems,[68] while another has stated that ‘the system of prosecutions pollutes the system of justice’.[69]
Confidence among the Cambodian people in the courts is minimal. In a 2009 poll, only 36% said they had trust in the criminal justice system,[70] though notwithstanding this apprehension, respondents ‘indicated that the best mechanism for the task [of trying the KR] were the Government of Cambodia and the national courts system’.[71] This lack of concern with the independence of the proceedings may be a function of the high popularity of the trials, 90% believe it is important to hold KR figures accountable,[72] while nearly 60% would welcome even a sub-standard judicial process if it could secure convictions.[73] The understandable desires for retribution and ownership would appear to trump the type of concerns expressed by the Experts and the UN Secretary-General.
It is hoped that the ECCC’s legacy might help restore the trust and confidence of the people in the courts that has been diminished by such practices. While the KR trials enjoy wide public favour, ordinary Cambodians remain more concerned with the impunity they face daily than that of 35 years ago.[74] A weak rule of law of which a compromised judiciary is the sine qua non could limit the attractiveness of Cambodia to foreign investment and consequently impair much-needed economic growth. The ECCC’s legacy could go beyond justice for the past into increasing transparency and trial standards in the future. Beyond questions of guilt, innocence and truth, it is hoped that if the trials set an example of fairness and transparency, it can effect cultural change in Cambodia’s rule of law:
Judges can learn from the international process — from [the ECCC’s] international judges and their codes of conduct. People may have the opportunity to watch a fair trial and compare it with the trials they have seen in the past, and in the future.[75]
It is worthwhile remembering Linton’s warning that ‘[t]hose who believe that trying a few geriatrics is the elixir that is going to transform Cambodia need to remove their rose-tinted glasses’,[76] but to the extent that the process could insulate itself from political interference, punish abuses and provide access to counsel, it has the potential to break the cycle of violence and impunity, if only temporarily. Cultural change is however a difficult task, and any didactic influence the ECCC might have requires legitimacy and impartiality that can only come from avoiding the danger which the Group of Experts found most problematic — that it would be viewed by the public as a ‘partisan political exercise’.[77] If trials are not fair or not independent, they risk demonstrating once more the supremacy of political exigencies over the rule of law and integrity of trial. The structure of the ECC that was ultimately negotiated may not have gone far enough to ensure this does not occur.
The six years and eleven rounds of painstaking negotiations to finalise a structure for the Khmer Rouge trials acceptable to all have been exhaustively catalogued elsewhere, and so the briefest of summaries is provided here.[78] It should be remembered that at all stages since 1997, the advanced age of potential KR indictees has been noted but that urgency has not always translated into prompt action.
In June 1997, Cambodia’s then Co-Prime Ministers wrote to the UN Secretary-General requesting assistance in bringing the KR to justice.[79] On receipt of the Cambodian letter, the Secretary-General in 1998 appointed the aforementioned Group of Experts to explore various legal avenues for holding the KR accountable.[80] They primarily considered two options: (a) a fully international tribunal, or (b) a Cambodian tribunal to which the UN could give assistance. On account of fears for the independence and competence of the Cambodian justice system, the Experts emphatically recommended the establishment of an ad hoc international tribunal along the lines of the ICTY or ICTR, sharing their Prosecutor and located in an Asian-Pacific state outside Cambodia.[81] The Experts rejected the hitherto unprecedented concept of a mixed tribunal on the grounds of, inter alia, possible governmental interference, cost and delay.[82] By 1998, fugitive KR leaders Nuon Chea and Khieu Samphan had handed themselves in, and the need for Hun Sen (by now sole Prime Minister) to wield the threat of prosecutions diminished. He now began to speak the language of reconciliation and counselled that ‘if improperly and heedlessly conducted, the trials of Khmer Rouge leaders would panic other former Khmer Rouge officers and its rank and file, who have already surrendered, into turning back to the jungle and renewing the guerrilla war in Cambodia.’[83] Cambodia furthermore argued that constitutional law forbade an international tribunal.[84]
As a compromise between the UN’s desire for an international process and the CPP’s intention to retain as much control as possible, the UN proposed a mixed tribunal structure composed of a majority of international judges. This concession, plus some pressure from more liberal political figures in Cambodia, softened Hun Sen’s position and a hybrid tribunal structure became inevitable.[85] The years between 1999 and 2003 were essentially a process whereby the government whittled away at this structure to undermine the international influence in the process.
In 2001, the government pre-empted ongoing UN negotiations by enacting the Law on the Establishment of the Extraordinary Chambers (‘The Law’) which allowed for inclusion of international judges as a supermajoritarian blocking minority, a foreign Co-Investigatory Judge and Co-Prosecutor to share responsibility for investigating and prosecuting, with a pre-trial Chamber mechanism to resolve disputes between them and removed the possibility of amnesty or pardon.[86] It was still markedly different from a draft agreement the UN negotiated. On 8 February 2002, the UN declared that it had ‘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’.[87] Human rights groups applauded the decision.[88] Stalemate ensued until a Group of Interested States[89] forced a reluctant UN to cave in and accept the Law as the basis of negotiation for a final tribunal Agreement.[90] On 17 March 2003, the UN and Cambodia reached a provisional treaty. This, as will be seen, did little to assuage doubts about Cambodian political control of the trials, though it did mitigate national domination by confirming the supermajority and dispute resolution mechanisms examined below. The 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[91] was ratified in October 2004.[92]
The Law on the ECCC commenced by specifying that courts comprising ‘Extraordinary Chambers’ were to be created within the existing Cambodian court structure.[93] Articles 3 and 9 of the Agreement provide that a Cambodian judge shall preside over a trial Chamber composed of three Cambodian and two international judges, with a Supreme Court Chamber serving an appellate and final instance function made up of four Cambodian and three international judges. Though Article 14(1) presupposes co-operation and unanimity in judicial decision-making, it also contains the most novel and controversial element of the ECCC. If unanimity is not possible, a decision by the Trial Court of the ECCC shall require the affirmative vote of at least four judges out of five.[94] This mechanism was created to assuage international fears that the majority Cambodian judges could control all elements of the process without an external check if simple majority rule applied. In effect, this is a supermajoritarian safeguard that prevents the presumably international judges from being outvoted — a conviction would require the assent of at least one of them. Where there is no unanimity, the decision of the ECCC shall contain both majority and minority opinions.[95] This complex arrangement gave rise to much hypothetical speculation over the calculus of decision-making that may not be resolved until the final overall findings of guilty or not guilty are recorded.
Opinion is divided on a structure borne of negotiation and compromise, but a majority of commentators seem opposed to it.[96] We are not yet at the point where the acid test of convictions or fatal division has been reached. Certainly, the supermajority requirement provides the ‘potential to snarl each part of the tribunal in dispute and appeal, bringing any case to a grinding halt’.[97] De Bertodano proposed the hypothesis of a 3-2 Cambodia-international split at trial on the admissibility of evidence:
How then can the trial continue? There is no decision, so the evidence is neither in nor out. The prosecution does not know whether it can rely on it or not. Most importantly, the judges cannot get to the stage of making a final decision, as there is no preliminary rule as to whether or not the evidence should or should no be admitted, it may impossible for a trial to continue.[98]
Human Rights Watch argued the Cambodian majority ‘ensures that it will be politics and not law that dominates the tribunal’s work’,[99] while the UN Secretary-General has publicly rued the lack of an international majority:
I would very much have preferred that the draft agreement provide for both of the Extraordinary Chambers to be composed with a majority of international judges. I was, and continue to be, of the view that international judges who would not be dependent in any way on the executive authorities of Cambodia, would be much less likely to be influenced by, or yield to any interference from that quarter.[100]
It is notable that all of these criticisms were expressed before the hearings at the ECCC started. The criticisms pre-supposed the uniformity of Cambodian judicial opinion, which is was not an unreasonable position given evidence of political interference. As Hammarberg notes, supermajority carries ‘an implicit notion of their being two categories of judges’.[101] The supermajority formula is not necessarily fatal to the fairness of the trial — while international dominance might guarantee fair trial, Cambodian predominance made fairness a matter of good faith. As such, Heder is correct to argue that though the vast potential for improving the law and Agreement have been lost, ‘there is nothing fundamentally wrong’ with the trials, at least on paper.[102] Nonetheless, it is difficult in light of the foregoing analysis of the Cambodian justice system to see a Cambodian judge break with their voting block on an issue of fundamental importance.
The proof of the pudding has been found in the eating. As hearings progress, the domestic majority has not exercised the feared stranglehold in the day-to-day operation of the trials. The problem has instead emerged where one Co-Prosecutor attempted to move beyond the five indictees the Cambodian Government is willing to see tried downwards to less senior KR figures who may be part of the government or who retain the potential to seriously embarrass it. It is to this that attention now turns.
The scale of the crimes committed under Khmer Rouge rule means that thousands of people could conceivably be guilty of serious crimes. The KR divided responsibility for its administration among approximately thirty-two sectors which were themselves sub-divided into districts and sub-districts. Policy was set through directives which emphasised aggressive pursuit of decreed goals, but did not directly control the actions of many of its officials.[103] Many such offenders might better be described as ‘conflict entrepreneurs’ or ‘innovators’ than mere automatons acting on orders from above. Of course, it is obvious that many cadres have died since 1975, both at operative and leadership level.[104] Nevertheless, the possibility existed in theory to prosecute hundreds or even thousands of offenders. In reality, the relative penury of Cambodia and the difficulties the UN endures in securing funding for internationalised tribunals generally meant that finances and logistics would dramatically constrain the potential for prosecuting large numbers of perpetrators in conjunction with the perceived risk of destabilisation that might come with such an expansive policy.[105] Furthermore, the practical necessity of ensuring that states remain co-operative has limited historically the practical ability even of far more independent and internationally-dominated tribunals such as the ICTY and ICTR to prosecute all offences subject to their jurisdiction.[106] The ultimate figures for indictment were unpredictable.
Ambiguous guidance was provided in Article 2 of the ECCC Agreement on ratio personae, which limited the personal jurisdiction of the Chambers to those who were ‘senior leaders of Democratic Kampuchea’ and those who were ‘most responsible’ for atrocities committed during the Khmer Rouge period.[107] The distinction between those ‘most responsible’ and ‘senior leaders’ reflects the desire of the drafters that the ECCC not be limited merely to the political leadership of the KR but instead to include anyone who was significantly responsible, regardless of their position in the hierarchy.[108] It has been suggested that the term ‘most responsible’ was specifically inserted to allow for the prosecution of Kaing Guek Eav (alias Duch) who was already in custody and who ran the notorious Tuol Sleng S-21 torture camp. Duch and others at a similar level who did not hold high positions in the regime but distinguished themselves by the brutality and scale of their crimes or their indispensability in the chain of causation come within the jurisdiction of the ECCC.[109] It reflects the reality that the individuals who planned and directed (if not physically committed) atrocities may have been quite removed from the formal seats of power. As the UN Commission of Experts recommended:
A list of top governmental and party officials may not correspond with the list of persons most responsible for serious violations of human rights in that certain top government leaders may have been removed from knowledge and decision-making; and others not in the chart of senior leaders may have played a significant role in the atrocities.[110]
While the term ‘senior leader’ is relatively circumscribed and definable, ‘most responsible’ is considerably more ambiguous and affords much discretion to prosecute or to not prosecute. It is this essentially nebulous criterion that has animated considerable controversy. Historian Steve Heder has suggested that there could be as many as 60 potential indictees of senior leaders or those most responsible.[111] Though this would be in keeping with numbers prosecuted before the Timorese Special Panels and the ad hoc tribunals, the UN experts instead estimated that between 20 and 30 KR figures should be tried.[112] There would be ample evidence to secure convictions for this number of indictees. In a survey of the evidence available, Fromholz notes that a plethora of documents from the frequently meticulous KR could be allied to the testimony of witnesses, victims or journalists, the physical evidence in nearly 20,000 mass graves, over 180 detention facilities and 77 genocide memorials to prosecute what remains a readily identifiable group.[113] Given that the ECCC uses liberal admissibility requirements and the widespread acceptance that ‘the location of most suspects is known, and they are not physically protected from arrest’, the prospects for securing convictions were not unhealthy.[114]
It was this possible ease of conviction that may have led the Cambodian Government to row in the opposite direction by attempting to minimise prosecutions given the risk of embarrassment or worse averred to earlier.
Historians and legal scholars have argued that if the ECCC prosecutors were truly to follow the evidence where it leads, they would almost certainly find reasons to prosecute many more people at all levels of Cambodian society, past and present.[115]
The government has consistently argued that prosecutions should be few. The civil service declared that only a small number of people would fall within the jurisdiction of the court,[116] while Hun Sen himself suggested the figure of four or five defendants in the absence of a concrete number.[117] As Whitley puts it ‘Critics of the CPP-led government also argue that a small universe of suspects will reduce the risk that Hun Sen or other high-ranking officials will be embarrassed by any past association with the Khmers Rouges’.[118]
Though the ‘How low do you go?’ questioned is usually posed in terms of potential social instability accruing from too many prosecutions (as the Phnom Penh Government has attempted to frame the question), the less dramatic question of selective enforcement of international criminal law on account of potentially embarrassing trials is not historically unprecedented. Cryer reminds us that in arguing against the prosecution of Kaiser Wilhelm II after the First World War, some British opposition was motivated by a fear that his defence would involve the trial of British foreign policy in the run-up to the conflict, while fear of allegations about Allied conduct in the first Gulf War restrained attempts to prosecute Saddam Hussein’s Government for war crimes.[119]
In July 2007, prosecutors requested Co-Investigating Judges to charge the first five suspects whose identities became known on arrest.[120] Four suspects were members of the Central Committee, namely Khieu Samphan, Ieng Sary (also Deputy Prime Minister for Foreign Affairs), his wife Ieng Thirith and Nuon Chea (also chief ideologist and Deputy Secretary), in addition to the aforementioned Duch who lacked seniority but whose role at Tuol Sleng prison was deemed to render him ‘most responsible’.[121] Indeed, the investigation and trial of Duch proceeded separately from that of the other four.[122] All five defendants were charged with crimes against humanity, while Khieu Samphan, Ieng Sary and Nuon Chea were additionally charged with war crimes.
Hun Sen has repeatedly said that he would rather see the court fail than pursue more prosecutions.[123] His government has consistently tried to shift any blame for the 1975-79 atrocities from low-level KR figures from which the CPP sprang to a small clique around Pol Pot. It has spent the period since July 2007 attempting to prevent the indictment of additional indictees to this paltry figure.[124] An unduly restrictive interpretation of personal jurisdiction that focuses on a handful of Central Committee contradicts the wording and spirit of Article 1 whose inclusion of ‘those who were most responsible’ as an alternative to political leadership alone clearly envisaged a wider spread of accountability.[125] It is worth noting that though the Article 1 criteria of ‘most responsible’ is broader than the SCSL’s ‘those who bear greatest responsibility’, the latter still indicted 13 (and may convict as many as ten) politically sensitive suspects in a similar timescale to that allotted to the ECCC.[126] While the SCSL prosecutor found that a former government Defence Minister (Sam Hinga Norman) and a former Liberian Head of State (Charles Taylor) bore ‘greatest responsibility’, it also found that a mid-level but extraordinarily belligerent RUF commanders Augustine Gbao bore it also, while the low rank of one Alex Tamba Brima could not obscure his responsibility for mass criminality in the civil war.[127] The ICTY, ICTR and Special Panels indicted 161, 74 and over 512 respectively, though their criterion of ‘those responsible’ was admittedly less restrictive than the ECCC’s remit. The Appeals Chamber of the ICTY in Todovic found that factors such as the temporal scope of the crimes, the numbers affected, the nature of the crimes and their geographic scope were among the issues to be considered when deciding whether a defendant was ‘most responsible’ under the terms of Rule 11bis.[128] The government’s position would appear to preclude such analysis. As a result, scholars and analysts have been able to point out potential indictees such as Sou Met (chairman of the KR military division and responsible for army purges) and Meah Mut (who was allegedly involved in purges and torture and now serves in an advisory position to the Ministry of Defence) who have evaded accountability, despite being among the most responsible for atrocity.[129] As well as denying accountability before the law, this attempt to ensure widest impunity diminishes the opportunity to develop an accurate historical record of the crimes. As Heder argues, ‘[t]he narrow emphasis inevitably gives an impression that all, or the great majority, of crimes were the result of a top-down conspiracy, even if, in fact, this was not the case’.[130]
As noted earlier, the UN had sought the appointment of the Prosecutor of the ICTY and ICTR to an equivalent position for the KR trials.[131] The CPP refused this categorically. Instead, what materialised from negotiations was a hybrid system of Co-Prosecutors and Co-Investigation Judges (reflecting the French civil law division of the two functions) who share power equally.[132] The Co-Prosecutors enjoy exclusive competence to initiate prosecutions by engaging in a brief preliminary investigation and sanctioning the opening of a judicial investigation by sending an introductory submission and case file to the Co-Investigation Judges if they have reason to believe that crimes within the jurisdiction of the ECCC have been committed.[133] The latter investigate the facts set out therein independently and impartially and can then issue a Closing Order proposing suitable charges, which is effectively an indictment.[134] The Co-Prosecutors return once more to assume responsibility for prosecuting at trial. The Cambodian Government is to comply without undue delay to any request of the units involved in the KR trials, including arrest of accused persons.[135]
The fundamental assumption of both the Law and Agreement is that the Co-Prosecutors will agree to permit an opening of a judicial investigation.[136] However, given the supermajoritarian mechanisms elsewhere in the Agreement, the weakness of independent prosecutorial discretion in Cambodia, governmental interference and the failure of the CPP to disclose criteria for selection of judges and prosecutors, it became apparent that neutral appraisal of the merits of evidence might not necessarily be sufficient to guarantee agreement and so a dispute resolution mechanism was needed. Article 6(4) of the Agreement provides that where there is disagreement between either the Co-Prosecutors or Co-Investigation judges on whether to proceed with a prosecution or the conduct of an investigation, the case will proceed.[137] If a dissenting party does not wish to proceed, they can within 30 days call for a hearing before a pre-Trial Chamber of five judges to decide.[138] Here, the supermajority rules apply, requiring at least one judge to agree that prosecution or investigation should cease, where the Pre-Trial Chamber fails to reach a blocking supermajority of four, the case will proceed.[139] This was much to the chagrin of the Cambodians who unsuccessfully proposed that a supermajority instead be required for the prosecution to go ahead.[140] Again, where this qualified supermajority is not reached, the case will proceed. The position of the Pre-Trial Chamber in this matter is unique, being the only internationalised tribunal with responsibility for resolving disputes between branches of the prosecutorial function. The US Ambassador for War Crimes David Scheffer who helped negotiate the Agreement argues that this mechanism would be used in two distinct contingencies. The first is where there is a disagreement based on the merits of a particular suspect being charged. The second is where one of the Co-Prosecutors appears to be politically-influenced and the other seeks a verdict from the Pre-Trial Chamber to maintain the integrity of the ECCC.[141] Though this mechanism is a practical response to a very real threat of division and filibustering to ensure the ECCC functions expediently, it is not without its difficulties. The most obvious of these is that neither the Agreement nor the Law nor the Internal Rules (IR) provide clear rules as to how an actual dispute is to be resolved, though the International Co-Prosecutor has argued that in this function it should act as an independent arbitral tribunal.[142]
Anderson[143] and PoKempener[144] both note the possibility of international unanimity being unable to stop a spurious investigation or prosecution if there was no supermajority to oppose it. Indeed Luftglass even suggests the ‘veto power’ of Cambodians renders the international Co-Prosecutor ‘a mere figurehead and may grant the tribunal false legitimacy’.[145] Though these criticisms are valid, the greater danger has lain in the opposite direction, where the Cambodian majority operates to restrict the opportunity to prosecute figures additional to the handful currently on trial given the political interest in shielding certain figures from prosecution. Certainly, the default position of continued investigation in the absence of a supermajority favouring discontinuation tilts the balance in favour of wider accountability.
Khieu Samphan’s arrest on 19 November 2007 was the final arrest of the suspects in Case 002. Between July 2007 and November 2008, the Co-Prosecutors continued to examine evidence, but there was little sign that further prosecutions demanded by the international community and victims were forthcoming. Lack of progress in this regard became apparent by February 2008 when the Special Representative of the UN Secretary-General on Human Rights in Cambodia warned ‘although the jurisdiction of the ECCC is restricted to ‘senior leaders of the Democratic Kampuchea and those who were most responsible for the crimes committed’, if only the persons currently in the custody of the ECCC are accused, the people may not feel this is adequate’.[146] These sentiments have been echoed by NGO groups in Cambodia.[147]
By late 2008, it had become apparent that an internal dispute had arisen between the international Co-Prosecutor Robert Petit and his domestic counterpart Chea Leang over the need for further prosecutions. On 18 November 2008, the international Co-Prosecutor informed the national Co-Prosecutor that he wished to submit two new Introductory Submissions for new Case File Nos. 003 and 004.[148] On 3 December, the Pre-Trial Chamber received notice of a disagreement between the Co-Prosecutors over Petit’s stated intention to submit the two new cases for prosecution to the Co-Investigation judges.[149] A response was filed by Chea Leang on 29 December.[150] Petit’s Statement of Disagreement lodged with the Pre-Trial Chamber requested the judges to intervene to resolve the dispute between the two, arguing that the office of the Co-Prosecutor had found significant evidence of liability for crimes within the ECCC’s jurisdiction and that consequently investigations of these additional suspects should be allowed to proceed under Internal Rule 53, which provides that:
[I]f the Co-Prosecutors have reason to believe that crimes within the jurisdiction of the ECCC have been committed, they shall open a judicial investigation by sending an Introductory Submission to the Investigatory Judges either against one or more named persons or against unknown persons.
This is a purely objective criterion and may be contrasted with, for example, the ICC Prosecutor’s duty to consider whether investigation/prosecution would be ‘in the interests of justice’.[151]
Clearly, this disagreement was not related to the merits of the evidence, as Chea Leang later conceded.[152] Suspicions that the opposition was politically motivated were heightened by comments made by Hun Sen indicating his opposition to additional investigations in a speech at the Ministry of Education on 18 March on the basis that it would undermine the peace settlement in Cambodia.[153] He is also reported to have informed French President Sarkozy in July that no additional suspects would be tried.[154] The decision was delayed until November 2009 after the Pre-Trial Chamber submitted a request to the Co-Prosecutors for additional information concerning their disagreement.[155] By the time of the decision, Robert Petit had resigned effective 1 September 2009, citing personal and family reasons.[156] Three other international lawyers had resigned around the time of the disagreement, which may hint at frustration among international lawyers at the delays.[157]
The Pre-Trial Chamber of five judges decided it was sufficiently informed by the written submissions and that a hearing was not necessary.[158] In the disagreement proceedings, the new Introductory Submissions would be forwarded to the Co-Investigating Judges unless at least four of the Pre-Trial Chamber were satisfied that the arguments raised by Chea Leang should preclude this. The National Co-Prosecutor’s argument against advancing the case rested on three bases. Firstly, she argued that New Submissions were not necessary because the facts and crimes specified in them were covered in the first Introductory Submission of 18 July that outlined the cases against the five suspects currently in custody. The first Submission stated that 1.7 million people had died and summarised the most serious crimes committed in the era of Democratic Kampuchea, and she argued therefore that the totality of these crimes were already under the investigative power of the Co-Investigating judges and were sufficiently inclusive to obviate any need for further Introductory Submissions.[159] The second argument was that the Law and Agreement required selective prosecutions because perfect justice was impossible and the selection of suspects for prosecution must reflect the purpose of the Law and Agreement, namely to promote national unity, reconciliation and stability in Cambodia.[160] These, she argued, should take precedence over Internal Rule 53. Developing this line of argument, Chea Leang contended that the suspects identified in the new Introductory Submission were of too low a rank to fall within the jurisdiction of the ECCC and that the public interest required stability more than additional prosecutions. Interestingly, she contended that ECCC proceedings had not yet led to violent reaction by the KR because of a ‘public perception that the ECCC’s mandate is limited to senior leaders and those most responsible’.[161] This second argument was not addressed at trial by the Cambodian judges and so the international judges did not respond to it either. The third line of argument was that the International Co-Prosecutor conducted the preliminary investigation without her knowledge or assistance, and so violated the ECCC law and the IR, and so should be rejected.[162] The International Co-Prosecutor countered that the third issue on the regularity of the preliminary investigation was not germane to determination in the proceedings,[163] while in response to the issues of merit, the only criteria by which to determine whether a submission was valid or not under Rule 53 was the ‘reason to believe’ standard.[164] It is worth noting that he did not raise concerns about political interference at any stage in the pleadings.
The Pre-Trial Chamber could not reach a supermajority vote on a decision concerning the Disagreement, therefore Internal Rule 71(4)(c) provides that the action of the willing Co-Prosecutor to forward the new Introductory Submissions should be executed.[165] Nonetheless, the separate opinions of the judges are worth examining because they show a strict division on the basis of nationality, with the three Cambodian judges unanimous in favour of blocking prosecution and their two international colleagues unanimously deciding otherwise. Just over two years into a process which may yet run for another four or five, the predicted divisions that gave rise to the UN’s reluctance to participate in the tribunal as it is currently designed have become manifest.[166] The three Cambodian judges found that the preliminary investigation was conducted unilaterally by the international Co-Prosecutor without notification or discussion with his domestic equivalent and so violated the Law, Agreement and IR.[167] The minority international judges on the other hand considered the national Co-Prosecutor’s allegations of non-consultation to be merely ‘background information’.[168] The Cambodian judges unanimously held that the facts described in the new Introductory Submissions were already mentioned in the July 2007 first submission and consequently that there was no reason to issue the new submissions and that this was sufficient in their opinion to block forwarding them.[169] The international judges, by contrast, deferred to the Co-Prosecutors’ freedom to define the scope of a judicial investigation in Articles 5 and 6 of the Agreement. They found that the new Submissions refer to both new facts and over-lapping facts from Cases 001 and 002. On the basis that because the new facts could not be investigated without additional submissions by the Co-Prosecutors, the international judges found an obligation in Internal Rule 53(1) open a new judicial investigation.[170] There is no opportunity for appeal.
After the judges issued their Considerations, the acting International Co-Prosecutor submitted the names of five suspects in two separate cases (Cases 003 and 004) to the Co-Investigating judges on 7 September 1999.[171] Immediately afterwards, Hun Sen denounced the additional investigations, declaring: ‘If you want a tribunal, but you don't want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?’[172]
The names of the five new suspects are (at the time of writing) confidential and none have yet been formally charged or arrested. Though the Co-Investigating Judges are to conduct investigations jointly and agree on whether or not the alleged crimes come within the jurisdiction of the Chambers,[173] the Open Society Justice Initiative which monitors the KR Trials cite confidential sources who have indicated that Cambodian staff at the ECCC may not be allowed to participate in the investigation and prosecution of Cases 003 and 004.[174] These fears may be borne out by the news that six senior government figures (including the aforementioned Senate President Chea Sim, National Assembly President Heng Samrin, and Finance Minister Keat Chhon) have refused to appear in court after summonses to give witness testimony to the judges in Case 002.[175] A government spokesman stated that the government considered honouring such summonses a voluntary matter for the witnesses themselves,[176] notwithstanding the obligation in Article 25 of the Agreement to assist Co-Investigating Judges.[177] Monitors of the trial observe that there is no evidence that the Co-Investigating Judges have taken any substantial action to pursue these cases, noting that by contrast, the investigating judges in Cases 001 and 002 issued arrest warrants and charged the accused within four months of receiving the initial submission from the prosecutors.[178] Though the first investigative steps were taken in June 2010 in the form of confidential rogatory letters signed by both Co-Investing Judges to investigators and police to collect evidence, an Interior Ministry official responded by once more stating the government’s position that only five suspects should be indicted.[179] Following this, the Cambodian Co-Investigator cited the ‘current state of Cambodian society’ and the impact on the ongoing Case 002 investigations (‘le contexte actuel de la société cambodgienne dans son ensemble et les impacts éventuels de ces mesures sur le dossier 002’) as the reason for his present refusal to investigate the additional cases.[180]
If this is the case, it is likely that the international Co-Investigator will have to assume sole responsibility for the investigations, but the possibility of disagreement over whether to issue a Closing Order proposing suitable charges looms large. As noted earlier, disputes between Co-Investigators are resolved in a similar manner to that between Co-Prosecutors, with the default position in Article 7(4) that the investigative act proposed by the (presumably international) Co-Investigating Judge shall proceed in the absence of a qualified majority opposed to issuing the closing order. Ultimately, if Cases 003 and 004 come to trial, a conviction will still require either unanimity or a supermajority with at least one Cambodian assenting to a finding of guilt. Nothing in the Agreement, Law or Internal Rules prevents the possibility of the two international judges at trial finding on the evidence provided a former KR figure guilty of serious crimes and having all the Cambodian judges disagree. In this scenario, there is neither unanimity nor the supermajority required for a conviction.[181] In such a case, three international judges would require the ‘defection’ of two out of four domestic judges as the supermajority requirement at Supreme Court level is five. While the final decision of the Supreme Court Chamber would record findings of guilty and not guilty, the culprit would go free. As Meijer notes, ‘a de facto mock trial would have taken place’.[182]
A further danger is where even if prosecution is not abandoned in these circumstances, the Cambodian Co-Prosecutor and Co-Investigator may delay cases until international patience or finance run out or suspects die of old age. It is worth remembering that the average age of the five KR figures undergoing trial is 78 years old, while figures like Pol Pot, Ta Mok and Ke Pauk have already been lost to the march of time. As long ago as February 1999, the Group of Experts were urging speed and that even a year ‘seems like a long time to wait for justice’.[183] Though these KR indictees have proven somewhat sprightlier than younger figures like Foday Sankoh and Slobodan Milosevic who died before trial and conviction respectively, the Milosevic experience in particular points to the dangers of undue delay in commencing prosecutions of remaining suspects. Significantly, Etcheson reports comments allegedly made by Hun Sen at a CPP Central Committee meeting in 2000 where he told anti-tribunal figures that he had delayed the tribunal for three years and would continue to stall until all suspects had died natural deaths.[184] With CPP control of domestic appointments, it remains well within his capabilities. The KR trials represent the longest duration in history between commission of crimes and effective operation of a dedicated internationalised tribunal to address them. Progress is all cases has proven extremely dilatory. Disagreements, obstructionism and interference lengthen this gap and increase the risk that other perpetrators will meet the coffin before the court.
To these problems of delay and political interference may be added credible allegations of corruption that Cambodian administrative staff at the tribunal were forced to pay kickbacks to superiors in order to acquire and maintain their jobs, which were made public over two years ago.[185] No-one has yet been named or charged for corruption. In view of the risk of such phenomena becoming commonplace, the UN negotiated a ‘nuclear option’ in Article 28 of the Agreement, which allows the UN to withdraw its co-operation if the government deviates from its obligations. It provides:
Should the Royal Government of Cambodia change the structure or 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.
If cases 002, 003 and 004 run into serious obstruction or delay, the UN may be willing to exercise this option. It may not have much deterrent effect on Cambodian interference: a Government spokesperson has warned international officials involved in the Extraordinary Chambers that they ‘can pack up their up their clothes and return home’ if they are not satisfied with their operation.[186] It would represent an embarrassing withdrawal by the world body after spending over US$150 million on the tribunal. The robust nature of the International Co-Prosecutor’s and International judges’ arguments in the Considerations may help preserve the ECCC’s credibility. Nevertheless, a very serious question must asked: can justice be seen to be done when half the investigators, prosecutors and a majority of the judges oppose seeing the case come to fruition? It is this lack of legitimacy and the signalled risk of later failure to secure a conviction that could undermine efforts to extend accountability beyond those currently indicted. The concerns expressed by all UN figures involved in the negotiations about the danger of corrupting the UN’s moral authority may yet be realised. While the ECCC’s default position of favouring prosecution in case of disagreements is a useful tool in the battle against KR impunity, the prosecutions of Cases 003 and 004 remain hostage to a number of fortunes. It remains to be seen whether justice will be done in Cambodia.
[∗] BCL, PhD (University College Cork), Lecturer in Law, Dundee Law School, University of Dundee.
[1] Considerations of the Pre-Trial Chamber Regarding the Disagreement Between the Co-Prosecutors Pursuant to Internal Rule 71, 18 August 2009, Disagreement No. 001/18-11-2008-ECCC/PTC, <www.eccc.gov.kh/english/cabinet/courtDoc/425/Public_redacted_version_-_Considerations_of_the_PTC_regarding_the_Disagreement_between_the_Co-Prosecutors_pursuant_to_Internal_Rule_71_(English).pdf> at 27 August 2010.
[2] Chapter II of the Law on the Establishment of the Extraordinary Chambers as amended on 24 October 2004 (NS/RKM/1004/006) provides that the international crimes are genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for Protection of Cultural Property and crimes against internationally protected persons pursuant to the Vienna Convention of 1961 on Diplomatic Relations. The Court has the power to bring to trial suspects who committed homicide, torture and religious persecution set forth in the 1956 Penal Code of Cambodia which was the Cambodian criminal law in force during the relevant period.
[3] Prosecutor v Kaing Guek Eav (alias Duch) Case No. 001/18-07-2007/ECCC-TC, Judgment 26 July 2010.
[4] Prosecutor v Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan 002/19-09-2007/ECCC-PTC.
[5] Miriam J Aukerman, ‘Extraordinary Evil, Ordinary Crimes: A Framework for Understanding Transitional Justice’ (2002) 15 Harvard Human Rights Journal 39, 53.
[6] Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005).
[7] Diane F Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Legal Regime’ (1991) 100 Yale Law Journal 2537, 2548-2549.
[8] Stephan Landsman, ‘Alternative Responses to Serious Human Rights Abuses: Of Prosecutions and Truth Commissions’ (1996) 59 Law and Contemporary Problems 81, 84.
[9] Ruti G Teitel, ‘Human Rights in Transition: Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69, 69.
[10] ‘We are not going to be able to investigate the past. We would have to put the entire army in jail’ Newly elected Guatemalan President Cerezo Arevalo, November 1985.
[11] See generally William A Schabas, ‘The Rwandan Courts in Quest of Accountability-Genocide Trials and Gacaca Courts’ (2005) 3 Journal of International Criminal Justice 879.
[12] Richard Goldstone, ‘The International Tribunal for the Former Yugoslavia: A Case Study in Security Council Action’ (1995) 6 Duke Journal of Comparative and international Law 5, 7.
[13] Neil J Kritz, ‘Coming to Terms With Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’ (1996) 59 Law & Contemporary Problems 127, 134.
[14] Ruti G Teitel, Transitional Justice (Oxford University Press, 2001), 40.
[15] See generally, Ben Kiernan, The Pol Pot Regime: Race, Power and Genocide in Cambodia under the Khmer Rouge, 1975-79 (Yale University Press, 1996) and Evan R Gottesman, Cambodia after the Khmer Rouge: Inside the Politics of Nation Building (Yale University Press, 2003).
[16] Patrick Heuveline, ‘“Between One and Three Million”: Towards the Demographic Reconstruction of a Decade of Cambodian History (1970 – 1979)’ (1998) 52 Population Studies 49.
[17] Mann Bunyanunda, ‘Note: The Khmer Rouge on Trial: Whither the Defence?’ (2001) 74 South California Law Review 1581, 1582.
[18] Karin Bjornson and Kurt Jonassohn, Genocide and Gross Human Rights Violations (Transaction Publishers, 1998).
[19] Agreement on a Comprehensive Political Settlement of the Cambodian Conflict, 23 October 1991, U.N. SCOR, 46th Session (S/23177) (1991) reprinted in 31 I.L.M. 180 (1992).
[20] Seth Mydans, ‘Cambodian Purge Said to Claim 40 Victims’, New York Times (New York) 16 July 1997, A8.
[21] Vannath Chea, ‘Reconciliation in Cambodia: Politics, Culture and Religion’, in David Bloomfield, Teresa Barnes and Luc Huyse (eds), Reconciliation After Conflict: A Handbook (2004) 49, 50.
[22] Group of Experts for Cambodia, Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135, annexed to identical letters dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council (A/53/850 and S/1999/231) of 16 March 1999, [44].
[23] Royal Decree No. NS/RKT/1996/72, 14 September 1996.
[24] The process is of course widely criticised as a show-trial. See generally Howard J De Nike et al (eds), Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (University of Pennsylvania Press, 2000).
[25] Stephen Marks, ‘Forgetting “The Policies and Practices of the Past”: Impunity in Cambodia’ (1994) 18 Fletcher Forum of World Affairs 17.
[26] The KR retain sufficient troop numbers to guard the border at Preah Vihear which is disputed with Thailand. Indeed, this state of affairs was one of the reasons advanced by the Co-Prosecutor for disagreeing with the attempt to open new cases. Considerations, above n 1, [26].
[27] ‘Cambodia is a fragile state which might easily fall into civil war and violence. This is because its political institutions are not strong enough to guarantee stability. Cambodia was one of many countries that returned to civil war after concluding a peace agreement because the Khmer Rouge faction did not abide by the Comprehensive Political Settlement on Cambodia’s Peace Agreement in 1991 which called for disarmaments. ‘Kong Sam Onn, ‘Jurisdiction Rationae Personae of the Extraordinary Chambers in the Courts of Cambodia: Peace vs. Justice’ (2008) 37 Forum of International Development Studies 149, 163.
[28] Gill Murdoch, ‘Factbox: Khmer Rouge Casts Lingering Shadow Over Cambodia’, Reuters, 18 November 2009.
[29] ‘Vietnam Newspaper: Time Cannot Erase Genocidal Khmer Rouge Crimes’, Associated Press (New York), 6 January 1999.
[30] Daniel Kemper Donovan, ‘Recent Development: Joint UN-Cambodia Efforts to Establish a Khmer Rouge Tribunal’ (2003) 44 Harvard International Law Journal 551, 560.
[31] Kelly Whitley, ‘History of the Khmer Rouge Tribunal: Origins, Negotiations and Establishment’ in John D. Ciorcari (ed), The Khmer Rouge Tribunal (Documentation Centre of Cambodia, 2006) 29, 49. Similarly: ‘Critics of Hun Sen argued that for the Prime Minister, the tribunal negotiations were primarily a means to defeat the remaining Khmer Rouge leadership and to demonstrate his political credibility as the Cambodian leader who formerly vanquished the former KR regime.’ (39).
[32] Group of Experts, above n 22, [108] and [166].
[33] Whitley, above n 31, 42.
[34] Craig Etcheson, ‘The Politics of Genocide Justice in Cambodia’ in Cesare P Romano, Andre Nollkaemper and Jann K Kleffner (eds), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford University Press, 2004) 181, 183.
[35] Ibid 186.
[36] Herbert D Bowman, ‘Not Worth the Wait: Hun Sen, the UN and the Khmer Rouge Tribunal’ (2006) 24 UCLA Pacific Basin Law Journal 66, 79.
[37] Steve Heder, ‘The Senior Leaders and Those Most Responsible’ in Stephen Humphreys and David Berry (eds), The Extraordinary Chambers: Justice Initiatves (Open Society Justice Initiative, 2006) 53, 54.
[38] Gottesmann, above n 15, 354.
[39] International Foundation for Electoral Systems, Cambodia: Ruling Party Wins, Opposition Rejects Results (21 July 2008), <www.electionguide.org/country-news.php?ID=37> at 27 August 2010.
[40] Seth Mydans, ‘Cambodian Leader Cracks Down in Bid to Solidify Power’, International Herald Tribune (New York), 9 January 2006.
[41] Michael Lieberman, ‘Salvaging the Remains: The Khmer Rouge Tribunal on Trial’, 186 Military Law Review (2005) 164, 168.
[42] Khmer Institute of Democracy, KID-VWP Outreach Survey on Knowledge and Interest in the ECCC (Phnom Penh, Khmer Institute of Democracy, 2008), 4.
[43] Etcheson, above n 34, 184.
[44] Group of Experts, above n 22, [205].
[45] William W Burke-White, ‘Regionalization of International Criminal Law Enforcement: A Preliminary Exploration’ (2003) 38 Texas International Law Journal 729, 742.
[46] Etcheson, above n 34, 183.
[47] Sok An, ‘The Khmer Rouge Tribunal: What it Means for Cambodia’ in Humphreys and Berry (eds), above n 37, 25.
[48] John Ciorcari, The Khmer Rouge Trials: Now, Never, or Somewhere in Between?, Searching for the Truth, Magazine of the Documentation Center of Cambodia, <www.dccam.org/Magazine/Special20%Issue/page_41.org.pdf>, at 27 August 2010, 41, 42.
[49] In negotiations in 1999 on the ECCC’s formation, the Cambodian Minister for Foreign Affairs Hor Nam Hong told SRSG Hammerberg that the UN’s capacity to provide for fair trials was called into question by the fact that it allowed the KR coalition to occupy its seat in the General Assembly before the Paris Peace Process was completed. See Donovan, above n 30, 558.
[50] Article VI, Convention on the Prevention and Punishment of the Crime of Genocide, UN General Assembly, 9 December 1948.
[51] Letter from Norodom Ranariddh, Cambodian First Prime Minister, and Hun Sen, Cambodian Second Prime Minister, to Secretary General Annan, 21 June 1997, annexed to UN Doc. (A/1997/488) of 24 June 1997.
[52] Group of Experts, above n 22, [137].
[53] Trevor Finlay, Cambodia: The Legacy and Lessons of UNTAC (Stockholm, OUP/Stockholm International Peace Research Institute, 1995), 91-113.
[54] Group of Experts, above n 22, [126].
[55] Ibid [157].
[56] World Bank, Cambodia at the Crossroads, Report No. 30636-KH, November 2004, (2004) <www.cambodiapolitic.org/IMF/world_bank.pdf> at 27 August 2010.
[57] Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges (2005), 133. Sok An (Deputy Prime Minister) clarified the matter, stating that ‘when the Cambodian Co-Prime Ministers requested the United Nations for assistance [sic] in organizing the process for a Khmer Rouge trial, it was an appeal for assistance but not for the substitution of our institutions, which have continued to pursue these efforts.’ Sok An, Statement by the Cambodian Delegation to the United Nations Regarding the Establishment of the Extraordinary Chambers in the Courts of Cambodia (13 January 2003),
<www.camnet.com.kh/ocm/government/government144.htm> at 27 August 2010.
[58] Cambodia Constitution (1993), Article 109.
[59] Article 5(3).
[60] Group of Experts, above n 22, [133].
[61] Quoted in Kathryn Neilson, ‘They Killed All the Lawyers: Rebuilding the Judicial System in Cambodia’, Centre for Asia Pacific Initiatives Occasional Paper Series (1996) (On file with author), 7.
[62] Suzannah Linton, ‘Safeguarding the Independence and Impartiality of the Cambodian Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 327, 333.
[63] Bowman, above n 36.
[64] Prak Than Shul and Lee Berthiaume, ‘Power Shift Puts Judiciary Under Government Control’, Cambodia Daily (Phnom Penh), 9 May 2005.
[65] Human Rights Watch, Serious Flaws: Why the UN General Assembly Should Require Changes to the Draft Khmer Rouge Trial Agreement (2003), <www.hrw.org/en/reports/2003/04/30/serious-flaws-why-un-general-assembly-should-require-changes-draft-khmer-rouge-tr> at 27 August 2010.
[66] Group of Experts, above n 22, [59]-[60].
[67] Ibid [158].
[68] Peter Leuprecht, Report of the Special Representative for the UN Secretary-General for Human Rights in Cambodia, UN Commission on Human Rights, 61st Session (2005), Agenda Item 19, UN Doc. E/CN.4/2005/116 of 20 December 2004, [10].
[69] Yash Ghai, Report of the Special Representative for Human Rights in Cambodia, UN Human Rights Council 4th Session (A/HRC/4/36) of 30 January 2007, [36].
[70] Phuong N Pham et al, So We Will Never Forget: A Population-Based Survey on Attitudes About Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia (Human Rights Center Reports, University of California, Berkeley <hrc.berkeley.edu/pdfs/So-We-Will-Never-Forget.pdf>, 27 August 2010) 4.
[71] Ibid 33.
[72] Ibid 31.
[73] Khmer Institute of Democracy, Survey on the Khmer Rouge and the Khmer Rouge Tribunal (Phnom Penh, Khmer Institute of Democracy, 2004), 99.
[74] Kelli Muddell (HRW/Asia), Transitional Justice in Cambodia: Challenges and Opportunities’ (2003) Society/ICTJ Symposium Report,
<www.ictj.org/static/Asia/Cambodia/cambodiasymposium.eng.pdf> at 27 August 2010, 8.
[75] Pham et al, above n 70, 8.
[76] Suzannah Linton, ‘Putting Cambodia’s Extraordinary Chambers into Context’ [2007] SGYrBkIntLaw 13; (2007) 11 Singapore Yearbook of International Law 195, 196.
[77] Group of Experts, above n 22, [134].
[78] Tessa V Capeloto, ‘Reconciliation in the Wake of Tragedy: Cambodia’s Extraordinary Chambers Undermines the Cambodian Constitution’ (2008) 17 Pacific Rim Law and Policy Journal 103; Gerald W May, ‘An Unlikely Culprit: Examining the UN’s Counterproductive Role in the Negotiations Over a Khmer Rouge Tribunal’ (2004) 27 Boston College International and Comparative Law Review 147.
[79] Quoted in Letter, above n 51.
[80] General Assembly Resolution 52/135, (A/RES/52/135) of 27 February 1998.
[81] Group of Experts, above n 22, [219].
[82] Ibid, [185-197].
[83] UN Commission on Human Rights, Situation of Human Right in Cambodia (1999), (E/CN.4/1999/101/Add.1), [9].
[84] Chapter III, Article 53 of the Cambodian Constitution, 1993 provides that ‘Khmer citizens shall not be deprived of their nationality, exiled or arrested and deported to any foreign country unless there is a mutual agreement on extradition’.
[85] Letter from the Cambodian Prime-Minister to the UN Secretary-General, 28 April 1999.
[86] 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, Reach Kram No. NS/RKM/1004/006 of 15 January 2001.
[87] United Nations, ‘Daily Press Briefing by the Office of the Spokesman for the Secretary-General’ of 8 February 2002.
[88] Human Rights Watch, Cambodia: Tribunal Must Meet International Standards (2002), <www.hrw.org/en/news/2002/02/12/cambodia-tribunal-must-meet-international-standards> at 27 August 2010.
[89] Japan, Australia, US, France.
[90] General Assembly Resolution 57/228, (A/RES/57/228) of 18 December 2002.
[91] Referred to as the Agreement and found at:
<www.eccc.gov.kh/english/cabinet/agreement/5/Agreement_between_UN_and_RGC.pdf>at 27 August 2010.
[92] Ker Munhit, ‘Cambodia’s Legislature Approves Amendments to the Extraordinary Chambers Law’, Associated Press, 5 October 2004.
[93] Article 2.
[94] Similarly, a decision by the Supreme Court Chamber shall similarly require the affirmative vote of at least 5 out of 7 judges.
[95] Article 14(2).
[96] Particularly strident criticism comes from Sylvia de Bertodano, ‘Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 285; Scott Luftglass, ‘Note: Crossroads in Cambodia: The United Nations’ Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge’ (2004) 90 Virginia Law Review 893; Human Rights Watch, above n 65.
[97] Dinah PoKempner, ‘The Khmer Rouge Tribunal: Criticisms and Concerns’ in Humphreys and Berry (eds), above n 37, 32, 40.
[98] De Bertodano, above n 96, 291.
[99] Mike Jendrzejczyk, director of HRW’s Asia Division, quoted in Whitley, above n 31, 52.
[100] Report of the UN Secretary-General on the Khmer Rouge Trials (A/57/751) of 31 March 2003, 11.
[101] Thomas Hammarberg, ‘How the Khmer Rouge Tribunal was agreed’, Searching for the Truth Magazine cited in De Bertodano, above n 96, 290
[102] Heder, above n 37, 53.
[103] Group of Experts, above n 22, [17] and Timothy Carey, ‘The Organization of Power’ in Karl Jackson (ed) Cambodia 1975-1978: Rendez-vous with Death (Doubleday, 1989), 99.
[104] Among the latter, among the most famous include Pol Pot, Ta Mok (also known as ‘The Butcher’), Defence Minister Sun Sen and the notorious zone commander Ke Pauk.
[105] See Thordis Ingadottir, ‘Financial Challenges and their Possible Effects on Proceedings’ (2006) 4 Journal of International Criminal Justice 294.
[106] Cryer, above n 6, 230.
[107] Article 2 provides inter alia that ‘the Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1 of the Agreement.’
[108] Scott Worden, ‘An Anatomy of the Extraordinary Chambers’ in Jaya Ramji and Beth Van Schaak (eds), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (2005) 171, 179.
[109] 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 (eds), above n 108, 377, 409-410.
[110] Group of Experts, above n 22, [109].
[111] Steve Heder, ‘The Senior Leaders and Those Most Responsible’ in Humphreys and Berry (eds), above n 37, 53, 55.
[112] ‘It is, nonetheless, the sense of the Group from its consultations and research that the number of persons to be tried might well be in the range of some 20 to 30’, Group of Experts, above n 22, [110].
[113] Julia Fromholz, ‘Proving Khmer Rouge Abuses: Uses and Limitations of the Available Evidence’ in Ciorcari (ed), above n 31, 107, 107-129.
[114] Group of Experts, above n 22, [114].
[115] Heleyn Unac and Steven Liang, ‘Delivering Justice for the Crimes of Democratic Kampuchea’, in Ciorcari (ed), above n 31, 133, 143.
[116] Secretariat of the Government Task Force, An Introduction to the Khmer Rouge Trials (2006), 6.
[117] Whitley, above n 31, 42.
[118] Ibid 47.
[119] Cryer, above n 6, 202.
[120] Extraordinary Chambers in the Courts of Cambodia, Order of Provisional Detention, Investigation No. 001/18-07-2007 (18 July 2007).
[121] Above n 4. For greater detail on these figures, see Steve Heder and Brian Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge (War Crimes Research Office, Washington College of Law, 2001).
[122] Above n 3. The ECCC issued order the order for Duch on 19 September 2007, Update by Co-Investigators, 1 November 2007,
<www.eccc.gov.kh/english/cabinet/press/46/OCIJ_Media_Update_EN_01_11_2007.pdf> at 27 August 2010.
[123] Jared Ferrie, ‘Trial and tribulations in Cambodia’, Asia Times (Bangkok), 6 October 2009.
[124] Bowman, above n 36, 79.
[125] See generally Sean Morrison, ‘Extraordinary Language in the Courts of Cambodia: Interpreting the Limiting Language and Personal Jurisdiction of the Cambodian Tribunal’ (2008) 37 Capital University Law Review 583.
[126] Statute of the Special Court for Sierra Leone, Article 1(1).
[127] Prosecutor v Augustine Gbao (SCSL-2003-09-I) and Prosecutor v Alex Tamba Brima (SCSL-2003-06-I).
[128] ICTY, Decision on Savo Todovic’s Appeal Against Referral Under Rule 11bis (Prosecutor v Todovic, Case No. IT-97-25), 4 September 2006, [13]-[25]. Rule 11bis was the rule that governed referral of indictments from the ICTY to another court in order to give effect to the broad strategy for completion of ICTY cases by 2008.
[129] Fromholz, above n 113, 117; Heder and Tittemore, above n 121, 115-132.
[130] Heder, above n 37, 57.
[131] Group of Experts, above n 22, [161].
[132] Article 5(1) provides: ‘There shall be one Cambodian and one international investigating judge serving as co-investigating judges.’ Article 6(1) provides: ‘There shall be one Cambodian and one international prosecutor competent to appear in both Chambers, serving as co-prosecutors. They shall be responsible for the conduct of the prosecutions.’
[133] See Rules 49 to 54 of the Internal Rules of the ECCC (12 June 2007) which consolidated the Cambodian procedural law applicable to KR trials.
[134] Rules 55 to 70 of the Internal Rules.
[135] Article 25 of the Agreement and Article 33 of the Law.
[136] Article 6(4) of the Agreement provides: ‘The Co-Prosecutors shall cooperate with a view to arriving at a common approach to the prosecution. In case the prosecutor are unable to agree whether to proceed with a prosecution, the prosecution shall proceed unless the prosecutors or one of them requests within thirty days that the difference shall be settled in accordance with Article 7.’
[137] Ibid.
[138] Article 7 of the Agreement, Article 20(new) of the Law and Internal Rule 71 (which is the most detailed) all outline the same procedure.
[139] Article 7(4).
[140] Craig Etcheson, ‘“A Fair and Public Trial”: A Political History of the Extraordinary Chambers’ in Humphreys and Berry, above n 37, 13.
[141] David Scheffer, ‘How Many are Too Many Defendants at the KRT?’ Phnom Penh Post (Cambodia), 8 January 2009.
[142] International Co-Prosecutor’s Response to Directions [to Provide Further Particulars and Scheduling Order, 22 April 2009], 22 May 2009, see Considerations, above n 1.
[143] Katrina Anderson, ‘Mechanics of the Tribunal: The Rules of Evidence and Procedure’ in Ciorcari (ed), above n 31, 81, 90.
[144] PoKempner, above n 97, 37.
[145] Luftglass, above n 96, 943.
[146] Yash Ghai, Report of the Special Representative of the Secretary-General for Human Rights in Cambodia, UN Genera Assembly, UN Human Rights Council 7th Session (A/HRC/7/42) of 29 February 2008, 84.
[147] ‘We do not believe that the ECCC should arbitrarily limit itself to the five prosecutions …Without further prosecution the ECCC will fail to deliver justice to the people of Cambodia and damage efforts to create genuine reconciliation.’ Statement of the Cambodian Human Rights Action Committee, 14 January 2009.
[148] National Co-Prosecutor’s Response to the International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement Pursuant to Rule 71(2), 29 December 2008.
[149] International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to Rule 71(2). Initially, the International Co-Prosecutor wanted to Pre-Trial Chamber to adjudicate a further disagreement over a Supplementary Submission related to Case 002, but withdrew this request on 5 March 2009.
[150] National Co-Prosecutor’s Response to the International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to Rule 71(2) of 29 December 2008.
[151] Rome Statute of the ICC, Article 53 (1) and 53 (2).
[152] There is nothing in National Co-Prosecutor’s Response to the International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to Rule 71(2) of 29 December 2008 to suggest this.
[153] Speech recorded and broadcast by Voice of America, 18 March 2009, cited in Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: May 2009 (2009) <www.soros.org/initiatives/justice/focus/international_justice/articles_publications/publications/eccc_20090529/eccc_20090501.pdf> at 27 August 2010.
[154] Michael Heath, ‘Cambodia Pushes to Curb Khmer Rouge Court, Group Says’, Bloomberg.com (New York), 22 July 2009.
[155] Press Statement of International Co-Prosecutor, 24 April 2009.
[156] Written version of the oral statement delivered by the International Co-Prosecutor during the Pres Conference of 24 June 2009,
<www.eccc.gov.kh/english/cabinet/press/119/Statement_of_International_Co-Prosecutor_24_June_2009.pdf> at 27 August 2010.
[157] Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: August 2009 (2009), <www.cambodiatribunal.org/images/CTM/eccc%20report%20august%2017%2009.pdf?phpMyAdmin=KZTGHmT45FRCAiEg7OLlzXFdNJ4> at 27 August 2010, 11.
[158] Decision to Determine the Disagreement on the Basis of Written Submissions Alone, 1 June 2009.
[159] Considerations, above n 1, [29]-[30].
[160] Ibid [31]-[37].
[161] Ibid [34].
[162] Ibid [38].
[163] Ibid [40].
[164] Ibid [41].
[165] Ibid [45].
[166] ‘[F]or the UN to agree to participate in a “mixed” tribunal, there had to be guarantees for the integrity of the process. This is fundamentally what the discussions had been all about. Such guarantees for international standards require watertight protection against the risk of direct or indirect political pressure’. Thomas Hammarberg, How the Khmer Rouge tribunal was agreed: discussions between the Cambodian Government and the UN (2001) Documentation Centre of Cambodia,
<www.dccam.org/Tribunal/Analysis/How_Khmer_Rouge_Tribunal.htm> at 27 August 2010.
[167] Considerations, Judgement of Judges Prak Kimsan, Ney Thol and Huot Vuthy, above n 1, [1]-[19].
[168] Considerations, Judgement of Judges Katinka Lahuis and Rowan Downing, above n 1 [4].
[169] Considerations, Judgement of Prak Kimsan, Ney Thol and Huot Vuthy, above n 1, [20]-[30].
[170] Considerations, Judgement of Judges Lahuis and Downing, above n 1, [22]. They held that adding new facts to Case File 002 would risk delaying proceedings and would infringe the Charged Persons’ right to be tried within a reasonable time [28].
[171] Statement of the Acting International Co-Prosecutor, ‘Submission of Two New Introductory Submissions’, 8 September 2009.
[172] Chean Sokha and Robbie Corey-Boulet, ‘ECCC Ruling Risks Unrest: PM’, Phnom Penh Post (Cambodia), 8 September 2009.
[173] Article 5(1) of the Agreement.
[174] Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: November 2009 (2009),
<www.soros.org/initiatives/justice/focus/international_justice/articles_publications/publications/eccc_20091120/eccc_20091123.pdf> at 27 August 2010, 5.
[175] Ibid.
[176] ‘Cambodia PM Questions Khmer Rouge Court Summonses,’ AFP, 8 October 2009.
[177] Article 25 provides, inter alia, that the Government ‘shall comply without undue delay with any request for assistance by the co-investigating judges, the co-prosecutors and the Extraordinary Chambers or an order issued by any of them’.
[178] Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: March 2010 (2010),
<http://www.soros.org/initiatives/justice/focus/international_justice/articles_publications/publications/cambodia-20100324/cambodia-court-20100324.pdf> at 10 August 2010, 4.
[179] Douglas Gillison, ‘KRT Begins Investigations of Five New Regime Suspects’, The Cambodia Daily (Cambodia), 8 June 2010.
[180] ECCC Press Release, ‘Statement from the Co-Investigating Judges’, 9 June 2010, <http://www.eccc.gov.kh/english/cabinet/press/156/PROCIJ%28JUne2010.pdf> . See also Open Society Justice Initiative, ‘Political Interference at the Extraordinary Chambers in the Courts of Cambodia’ (2010).
[181] Article 4(1).
[182] Ernestine E Meijer, ‘The Extraordinary Chambers in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal’ in Romano, Kleffner, Nollkaemper (eds), above n 34, 207, 220.
[183] Group of Experts, above n 22, [182]. Similarly, the UN Secretary-General’s 2003 Report on Khmer Rouge Trials (A/57/769) of 31 March 2003 urged that the ECC be established as early as possible because ‘[o]therwise, the opportunity of bringing to justice those responsible for serious violations of Cambodian and international law during the period of Democratic Kampuchea might too be lost’ (8).
[184] Etcheson, above n 34, 201-202.
[185] A confidential UN report was delivered to the Cambodian Government in August 2008 which detailed numerous and persistent complaints of corruption at the ECCC, mostly related to salary kickbacks which the Government has been reluctant to investigate. Only in August 2009 was a package of anti-corruption measures agreed, but this has been described as skeletal (Open Society Justice Initiative, above n 174, 20).
[186] Sebastian Strangio and Cheang Sokha, ‘Govt. testimony could bias KRT:PM,’ Phnom Penh Post (Cambodia), 9 October 2009.
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