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 CoProsecutor advocated the advancement of investigations, while his
domestic colleague resisted. The international judges on the PreTrial 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.
I
INTRODUCTION
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
∗
1
2
BCL, PhD (University College Cork), Lecturer in Law, Dundee Law School,
University of Dundee.
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_CoProsecutors_pursuant_to_Internal_Rule_71_(English).pdf> at 27 August 2010.
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
© Law School, University of Tasmania 2010
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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.
3
4
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.
Prosecutor v Kaing Guek Eav (alias Duch) Case No. 001/18-07-2007/ECCC-TC,
Judgment 26 July 2010.
Prosecutor v Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan 002/19-092007/ECCC-PTC.
The Limits of Co-operation and Judicial Independence
II
SELECTIVITY AND INTERNATIONAL CRIMINAL JUSTICE
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 postconflict 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
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.
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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.
11
See generally William A Schabas, ‘The Rwandan Courts in Quest of AccountabilityGenocide 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.
The Limits of Co-operation and Judicial Independence
III
THE ECCC IN HISTORICAL AND POLITICAL PERSPECTIVE
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 rightwing 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 USSRallied 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.
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).
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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 highlevel 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
19
20
21
22
23
24
25
26
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).
Seth Mydans, ‘Cambodian Purge Said to Claim 40 Victims’, New York Times (New
York) 16 July 1997, A8.
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.
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].
Royal Decree No. NS/RKT/1996/72, 14 September 1996.
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).
Stephen Marks, ‘Forgetting “The Policies and Practices of the Past”: Impunity in
Cambodia’ (1994) 18 Fletcher Forum of World Affairs 17.
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].
The Limits of Co-operation and Judicial Independence
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
27
28
29
30
31
32
‘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.
Gill Murdoch, ‘Factbox: Khmer Rouge Casts Lingering Shadow Over Cambodia’,
Reuters, 18 November 2009.
‘Vietnam Newspaper: Time Cannot Erase Genocidal Khmer Rouge Crimes’,
Associated Press (New York), 6 January 1999.
Daniel Kemper Donovan, ‘Recent Development: Joint UN-Cambodia Efforts to
Establish a Khmer Rouge Tribunal’ (2003) 44 Harvard International Law Journal 551,
560.
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).
Group of Experts, above n 22, [108] and [166].
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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 2030 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
irregularities39 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
33
34
35
36
37
38
39
40
Whitley, above n 31, 42.
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.
Ibid 186.
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.
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.
Gottesmann, above n 15, 354.
International Foundation for Electoral Systems, Cambodia: Ruling Party Wins,
Opposition Rejects Results (21 July 2008), <www.electionguide.org/countrynews.php?ID=37> at 27 August 2010.
Seth Mydans, ‘Cambodian Leader Cracks Down in Bid to Solidify Power’,
International Herald Tribune (New York), 9 January 2006.
The Limits of Co-operation and Judicial Independence
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.
IV
THE CAMBODIAN COURTS: COMPROMISES AND
CONCERNS
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
41
42
43
44
45
Michael Lieberman, ‘Salvaging the Remains: The Khmer Rouge Tribunal on Trial’,
186 Military Law Review (2005) 164, 168.
Khmer Institute of Democracy, KID-VWP Outreach Survey on Knowledge and Interest
in the ECCC (Phnom Penh, Khmer Institute of Democracy, 2008), 4.
Etcheson, above n 34, 184.
Group of Experts, above n 22, [205].
William W Burke-White, ‘Regionalization of International Criminal Law
Enforcement: A Preliminary Exploration’ (2003) 38 Texas International Law Journal
729, 742.
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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.
46
47
48
49
50
51
52
Etcheson, above n 34, 183.
Sok An, ‘The Khmer Rouge Tribunal: What it Means for Cambodia’ in Humphreys
and Berry (eds), above n 37, 25.
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.
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.
Article VI, Convention on the Prevention and Punishment of the Crime of Genocide,
UN General Assembly, 9 December 1948.
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.
Group of Experts, above n 22, [137].
The Limits of Co-operation and Judicial Independence
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
53
54
55
56
57
58
59
60
Trevor Finlay, Cambodia: The Legacy and Lessons of UNTAC (Stockholm,
OUP/Stockholm International Peace Research Institute, 1995), 91-113.
Group of Experts, above n 22, [126].
Ibid [157].
World Bank, Cambodia at the Crossroads, Report No. 30636-KH, November 2004,
(2004) <www.cambodiapolitic.org/IMF/world_bank.pdf> at 27 August 2010.
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.
Cambodia Constitution (1993), Article 109.
Article 5(3).
Group of Experts, above n 22, [133].
121
122
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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 interference65 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 SecretaryGeneral 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
61
62
63
64
65
66
67
68
69
70
71
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.
Suzannah Linton, ‘Safeguarding the Independence and Impartiality of the Cambodian
Extraordinary Chambers’ (2006) 4 Journal of International Criminal Justice 327, 333.
Bowman, above n 36.
Prak Than Shul and Lee Berthiaume, ‘Power Shift Puts Judiciary Under Government
Control’, Cambodia Daily (Phnom Penh), 9 May 2005.
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-shouldrequire-changes-draft-khmer-rouge-tr> at 27 August 2010.
Group of Experts, above n 22, [59]-[60].
Ibid [158].
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].
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].
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.
Ibid 33.
The Limits of Co-operation and Judicial Independence
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.
72
73
74
75
76
77
Ibid 31.
Khmer Institute of Democracy, Survey on the Khmer Rouge and the Khmer Rouge
Tribunal (Phnom Penh, Khmer Institute of Democracy, 2004), 99.
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.
Pham et al, above n 70, 8.
Suzannah Linton, ‘Putting Cambodia’s Extraordinary Chambers into Context’ (2007)
11 Singapore Yearbook of International Law 195, 196.
Group of Experts, above n 22, [134].
123
124
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RECONCILING INEVITABLE DIFFERENCES: THE ECCC
STRUCTURE
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 AsianPacific 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
78
79
80
81
82
83
84
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.
Quoted in Letter, above n 51.
General Assembly Resolution 52/135, (A/RES/52/135) of 27 February 1998.
Group of Experts, above n 22, [219].
Ibid, [185-197].
UN Commission on Human Rights, Situation of Human Right in Cambodia (1999),
(E/CN.4/1999/101/Add.1), [9].
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’.
The Limits of Co-operation and Judicial Independence
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 CoInvestigatory 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 States89
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 Kampuchea91 was ratified in October 2004.92
85
86
87
88
89
90
91
Letter from the Cambodian Prime-Minister to the UN Secretary-General, 28 April
1999.
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.
United Nations, ‘Daily Press Briefing by the Office of the Spokesman for the
Secretary-General’ of 8 February 2002.
Human Rights Watch, Cambodia: Tribunal Must Meet International Standards (2002),
<www.hrw.org/en/news/2002/02/12/cambodia-tribunal-must-meet-internationalstandards> at 27 August 2010.
Japan, Australia, US, France.
General Assembly Resolution 57/228, (A/RES/57/228) of 18 December 2002.
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.
125
126
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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
92
93
94
95
96
97
Ker Munhit, ‘Cambodia’s Legislature Approves Amendments to the Extraordinary
Chambers Law’, Associated Press, 5 October 2004.
Article 2.
Similarly, a decision by the Supreme Court Chamber shall similarly require the
affirmative vote of at least 5 out of 7 judges.
Article 14(2).
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.
Dinah PoKempner, ‘The Khmer Rouge Tribunal: Criticisms and Concerns’ in
Humphreys and Berry (eds), above n 37, 32, 40.
The Limits of Co-operation and Judicial Independence
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.
98
De Bertodano, above n 96, 291.
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.
99
127
128
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HOW LOW DO YOU GO? SELECTING INDICTEE NUMBERS
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
103
104
105
106
107
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.
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.
See Thordis Ingadottir, ‘Financial Challenges and their Possible Effects on
Proceedings’ (2006) 4 Journal of International Criminal Justice 294.
Cryer, above n 6, 230.
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.’
The Limits of Co-operation and Judicial Independence
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,
108
109
110
111
112
113
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.
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.
Group of Experts, above n 22, [109].
Steve Heder, ‘The Senior Leaders and Those Most Responsible’ in Humphreys and
Berry (eds), above n 37, 53, 55.
‘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].
Julia Fromholz, ‘Proving Khmer Rouge Abuses: Uses and Limitations of the Available
Evidence’ in Ciorcari (ed), above n 31, 107, 107-129.
129
130
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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
114
115
116
117
118
119
120
Group of Experts, above n 22, [114].
Heleyn Unac and Steven Liang, ‘Delivering Justice for the Crimes of Democratic
Kampuchea’, in Ciorcari (ed), above n 31, 133, 143.
Secretariat of the Government Task Force, An Introduction to the Khmer Rouge Trials
(2006), 6.
Whitley, above n 31, 42.
Ibid 47.
Cryer, above n 6, 202.
Extraordinary Chambers in the Courts of Cambodia, Order of Provisional Detention,
Investigation No. 001/18-07-2007 (18 July 2007).
The Limits of Co-operation and Judicial Independence
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
121
122
123
124
125
126
127
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).
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.p
df> at 27 August 2010.
Jared Ferrie, ‘Trial and tribulations in Cambodia’, Asia Times (Bangkok), 6 October
2009.
Bowman, above n 36, 79.
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.
Statute of the Special Court for Sierra Leone, Article 1(1).
Prosecutor v Augustine Gbao (SCSL-2003-09-I) and Prosecutor v Alex Tamba Brima
(SCSL-2003-06-I).
131
132
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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
VII
BICEPHALOUS PROSECUTIONS AT THE ECCC
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 CoProsecutors 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
128
129
130
131
132
133
134
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.
Fromholz, above n 113, 117; Heder and Tittemore, above n 121, 115-132.
Heder, above n 37, 57.
Group of Experts, above n 22, [161].
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.’
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.
Rules 55 to 70 of the Internal Rules.
The Limits of Co-operation and Judicial Independence
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 politicallyinfluenced 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
135
136
137
138
139
140
141
Article 25 of the Agreement and Article 33 of the Law.
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.’
Ibid.
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.
Article 7(4).
Craig Etcheson, ‘“A Fair and Public Trial”: A Political History of the Extraordinary
Chambers’ in Humphreys and Berry, above n 37, 13.
David Scheffer, ‘How Many are Too Many Defendants at the KRT?’ Phnom Penh
Post (Cambodia), 8 January 2009.
133
134
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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 CoProsecutor has argued that in this function it should act as an
independent arbitral tribunal.142
Anderson143 and PoKempener144 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 Co142
143
144
145
146
147
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.
Katrina Anderson, ‘Mechanics of the Tribunal: The Rules of Evidence and Procedure’
in Ciorcari (ed), above n 31, 81, 90.
PoKempner, above n 97, 37.
Luftglass, above n 96, 943.
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.
‘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.
The Limits of Co-operation and Judicial Independence
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 CoInvestigation judges.149 A response was filed by Chea Leang on 29
December.150 Petit’s Statement of Disagreement lodged with the PreTrial 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
148
149
150
151
152
153
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.
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.
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.
Rome Statute of the ICC, Article 53 (1) and 53 (2).
There is nothing in National Co-Prosecutor’s Response to the International CoProsecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to
Rule 71(2) of 29 December 2008 to suggest this.
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/pub
lications/eccc_20090529/eccc_20090501.pdf> at 27 August 2010.
135
136
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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
154
155
156
157
158
159
160
Michael Heath, ‘Cambodia Pushes to Curb Khmer Rouge Court, Group Says’,
Bloomberg.com (New York), 22 July 2009.
Press Statement of International Co-Prosecutor, 24 April 2009.
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_CoProsecutor_24_June_2009.pdf> at 27 August 2010.
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.pd
f?phpMyAdmin=KZTGHmT45FRCAiEg7OLlzXFdNJ4> at 27 August 2010, 11.
Decision to Determine the Disagreement on the Basis of Written Submissions Alone, 1
June 2009.
Considerations, above n 1, [29]-[30].
Ibid [31]-[37].
The Limits of Co-operation and Judicial Independence
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-
161
162
163
164
165
166
167
Ibid [34].
Ibid [38].
Ibid [40].
Ibid [41].
Ibid [45].
‘[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.
Considerations, Judgement of Judges Prak Kimsan, Ney Thol and Huot Vuthy, above n
1, [1]-[19].
137
138
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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 overlapping 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.
VIII
CONCLUSION
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
168
169
170
171
172
173
174
Considerations, Judgement of Judges Katinka Lahuis and Rowan Downing, above n 1
[4].
Considerations, Judgement of Prak Kimsan, Ney Thol and Huot Vuthy, above n 1,
[20]-[30].
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].
Statement of the Acting International Co-Prosecutor, ‘Submission of Two New
Introductory Submissions’, 8 September 2009.
Chean Sokha and Robbie Corey-Boulet, ‘ECCC Ruling Risks Unrest: PM’, Phnom
Penh Post (Cambodia), 8 September 2009.
Article 5(1) of the Agreement.
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/pub
lications/eccc_20091120/eccc_20091123.pdf> at 27 August 2010, 5.
The Limits of Co-operation and Judicial Independence
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) CoInvestigating 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
175
176
177
178
179
180
Ibid.
‘Cambodia PM Questions Khmer Rouge Court Summonses,’ AFP, 8 October 2009.
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’.
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_publicatio
ns/publications/cambodia-20100324/cambodia-court-20100324.pdf> at 10 August
2010, 4.
Douglas Gillison, ‘KRT Begins Investigations of Five New Regime Suspects’, The
Cambodia Daily (Cambodia), 8 June 2010.
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).
139
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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 CoInvestigator 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 antitribunal 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
181
Article 4(1).
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.
182
The Limits of Co-operation and Judicial Independence
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.
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.
141