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Bringing the Khmer Rouge to Trial:
An Extraordinary Experiment in
International Criminal Law
Mikael Baaz
1
Introduction ………………………..……………………………….…
292
2
The Rise and Fall of the KR Movement …………………………….
294
3
The Long and Winding Road to the ECCC Agreement ……………
297
4
A Structural Overview of the ECCC ………………………………..
305
4.1
Jurisdiction and Goals of the ECCC ……………………………...
307
4.2
The Organs of the ECCC …………………………………………
308
4.2.1
Co-Prosecutors and Co-Investigating Judges at the ECCC .
308
4.2.2
Judicial Chambers at the ECCC …………………………...
309
4.2.3
Other Judicial Offices at the ECCC ……………………….
309
4.3
A Summary of the Basic Judicial Process in the ECCC ………….
312
4.4
The Various National and Legal Backgrounds of the ECCC Staff
313
4.5
The ECCC’s Funding ………………………..……………………
314
5
The ECCC – An Experimental, Complex, Complicated and
Contradictory Construction ………………………………………….
314
5.1
The Road to the ECCC – Dubious Motives ………………………..
315
5.2
The ECCC – a Legal Construction Sui generis …………………….
317
5.2.1
The “Cos” ………………………..………………………....
318
5.2.2
International and Domestic Substantive Law ………………
320
5.2.3
The ECCC Internal Rules …………………………………..
322
5.2.4
Funding Issues………………………………………………
323
5.3
The ECCC – Continued Political Interference …………………….
324
6
The ECCC – As Good as could be had? …………………………….
227
References ………………………..……………………………………
332
292 Mikael Baaz: Bringing the Khmer Rouge to Trial
1 Introduction1
[Generally speaking, I think that the ECCC] is a qualified success (Interview,
International Co-Prosecutor Nicholas Koumjian, November 2014).
[The ECCC is] quit an amusing institution … It encapsulates the relationship
between Cambodia and the international community in a nutshell … The West
are here to “help” … to do things right … For a long time Hun Sen’s
perspective and many Cambodian’s perspective … has been that the Western
world … is hypocritical and have … this lofty ideals about justice … the way
things should be done and international procedures, when they actually violated
[them] at every turn [in relation] to [Cambodia] … [in particular] when many
Western countries supported the Khmer Rouge in the UN … [All in all] it can
be funny and a lot of time it puts Western hypocrisy to a higher belief
(Interview, Journalist, Phnom Penh, November 2014).
It is often said that the Extraordinary Chambers in the Courts in Cambodia
(ECCC) is a construction sui generis (see e.g. Ciorciari and Heindel 2014).
Two individuals from Sweden negotiated the Court on behalf of the United
Nations (UN) with representatives for the Cambodian People’s Party (CPP).
The first was Ambassador Thomas Hammarberg, a diplomat and politician.
The other was Hans Corell, a Judge and later the Legal Adviser in the Ministry
of Foreign Affairs in his country, who negotiated the agreement through which
the Court was established. The CPP is a party with roots in the Khmer Rouge
(KR) movement that represents the Royal Government of Cambodia (RGC).
The ECCC’s agenda is ambitious and holds several – and seemingly difficult to
reconcile – transitional justice (TJ) goals. The Court constitutes an integral part
of the civil law-based Cambodian court system, but is largely operated by a
legal staffs that has its background in other legal systems. Several members of
the international staff are educated in and have mainly practised common law,
while many of the Cambodian staff have earned their degrees in Moscow, West
Berlin and Hanoi and are thus trained in what is sometimes known as socialist
law (Interview, Journalist, Phnom Penh, November 2014). In addition, the
ECCC mixes international and Cambodian law, substantive as well as
procedural law. Consequently, the Court’s main characteristic is a variety of
(odd) compromises. All in all, the described uniqueness of the ECCC that is
put forward by several observers does indeed seem to hit the nail on the head.
The Court, also often referred to as the Khmer Rouge Tribunal or the
Cambodia Tribunal, is indeed a legal institution of its own kind – it is a hybrid
or mixed, not to say divided, construction. Put frankly, the ECCC is not only
1 The financial support by the Swedish Research Council, which has allowed me to
undertake research within a programme that is entitled The Globalization of Resistance:
Influences on Democracy Advocators in Civil Society in the South (project no. 2010-2298)
is gratefully acknowledged. This paper is an offspring of this programme. I also would like
to express my sincere gratitude to Professor Mona Lilja, not only for working together with
me when collecting data in Cambodia in 2010, but even more so for providing valuable
comments on an earlier draft of this paper.
Mikael Baaz: Bringing the Khmer Rouge to Trial 293
an extraordinary experiment in transitional justice (TJ) but also, and perhaps
even more so, in international criminal law (ICL).
The aim of this paper is to: (i) present an overview of the very first civil
law-based mass-crimes hybrid court in history; (ii) provide an interpretation of
the unique ECCC design by putting the Court and the negotiation process that
proceeded its establishment in a proper historical and political context; (iii)
draw attention to some of the ways the Court works, and quite often does not
work, by considering not only its unique design but also the highly politicized
issues at stake and the (sometimes conflicting) interests of its various
stakeholders; and (iv) by way of conclusion, discuss the lessons that could be
learned from the ECCC and the question of whether the Court should serve as
a future role model to achieve TJ and criminal accountability.
The paper is based on scholarly texts as well as official court documents,
but also, to a lesser extent, in-depth interviews with various stakeholders to the
Court and participatory observations.2 It will proceed in the following way:
The following two sections – section two and three – present the rise and fall of
the KR movement, including the signing of the Paris Peace Agreements in
1991, and the long as well as difficult process to establish the ECCC that
followed, respectively. The aim of these two sections is to place the Court in
context and provide a historical, political and legal understanding of why the
ECCC is designed the way it is. Next, in section four, the paper turns to the
2 In 2010, 2013 and 2014, interviews with various stakeholders to the ECCC, including
judges, prosecutors, lawyers, investigators and other court officials, victims, witnesses,
civil parties as well as transnational and local civil society representatives who work with
supporting victims, witnesses and civil parties with various issues in the ECCC were made.
The material in total includes some 50 “loosely-structured” in-depth interviews. Because
some issues are sensitive, I have chosen to anonymise some of the respondents.
In addition to these interviews, Hans Corell, former Under-Secretary-General for Legal
Affairs and the Legal Counsel of the UN, as well as the UN Chief Negotiator for the
ECCC, was also interviewed. This was done on 26 January 2015, via Skype. The interview
was conducted in Swedish and the parts quoted have been translated into English by the
author of this paper and approved by Mr. Corell.
In addition to the above, I have also visited the ECCC and listened to the Court
proceedings at several occasions since the proceedings started in 2007. The most recent
visit to the Court was made in October 2013 (when the closing statements in Case 002/01
were presented to the Trial Chamber of the ECCC). All these visits to the ECCC have,
needless to say, influenced my overall understanding of the Court.
Other primary sources used in this paper include various open Court documents. Most, if
not all, of them are available at the official website of the ECCC (see: “www.eccc.gov.
kh/en”).
In spite of the above, it should be emphasised that two secondary sources have been of
particular importance in preparing this paper: (i) the book, Hybrid Justice: The
Extraordinary Chambers in the Courts of Cambodia, written by John D. Ciorciari and
Anne Heindel and published by the University of Michigan Press (Ann Arbor) in 2014.
This book, which is heavily used and quoted in this paper, I had the honour of reviewing
for the Asian Journal of International Law in 2015 (Baaz 2015c). (ii) Ambassador Thomas
Hammarberg’s written recollections of the (initial) negotiations with the RGC for the
ECCC entitled, “How the Khmer Rouge Tribunal was Agreed: Discussions between the
Cambodian government and the UN” is published on the webpage of DC-Cam (see further
the list of references).
294 Mikael Baaz: Bringing the Khmer Rouge to Trial
structure of the ECCC per se. In section five, the unique and complex legal
characteristics of the ECCC are discussed and analysed in more detail with a
focus on, among other things, the mixture of international and domestic law, on
the one hand, and the various legal traditions that are forced to coexist within
the same institution, on the other. The sixth and concluding section of the paper
then asks what lessons can be learned from the ECCC process and to what
extent the ECCC should serve as a role model for the future.
2 The Rise and Fall of the KR Movement
A brief history of the rise and fall of the KR movement is essential when
seeking to understand the positions that various key actors, domestic as well as
international, eventually took in negotiating the ECCC as well as the
challenges that the Court is facing today when searching for criminal
accountability.
The KR movement is a descendant of the Indochinese Communist Party that
was born in Vietnam under French colonial rule in the 1930s. In 1951, the old
party was divided into three national branches: one Vietnamese, one
Cambodian and one Laotian. In spite of the split, the Vietnamese party
reserved to itself “the right to supervise the activities of its brother parties in
Cambodia and Laos” (Becker 1998: 72).
The Cambodian party was named the Kampuchean People’s Revolutionary
Party (KPRP) and when it held its First Party Congress, its chief political goal
was independence from France – who had ruled Cambodia as a protectorate
since 1863 – rather than providing a socialist revolution (Baaz 2015a: 166;
Chandler 2008: 222; Ciorciari 2009: 34; Slocomb 2003: 1–3).
In late 1953, after 90 years of French supremacy, Cambodia was eventually
granted full national independence. This was primarily the result of
negotiations between King Norodom Sihanouk and French governmental
officials and not the result of (armed) resistance by the KPRP. After having
obtained an overwhelming victory in the following 1955 Parliamentary
Election, the King abdicated in favour of his father and instead became Prime
Minister of the newly independent nation. Between 1955 and 1970, Sihanouk
more-or-less had monopoly on power in Cambodia, mainly due to a skilfully
implemented realpolitik, on the one hand, and a poorly organised and
ineffective opposition, on the other (Baaz 2015a: 167; Chandler 2008: 224–
232; Corfield 2009: 49–58).
In order to fully understand the KPRP and its successors, and, by extension,
what is currently being played out in the ECCC, it is of great importance to
note from the very beginning that the party has suffered from internal struggles
ever since its formation; basically between the old party veterans who held
strong loyalties to Vietnam, believed in orthodox Marxism-Leninism and were
partly supportive of Sihanouk, on the one hand, and a younger, much more
radical and utopian generation that was educated in France in the late 1940s
and early 1950s, which eventually became very inspired by Communism as
understood by Mao Zedong in China and, to some extent, Kim Il-sung in North
Mikael Baaz: Bringing the Khmer Rouge to Trial 295
Korea, on the other. (Baaz 2015a: 167, 169; Kiernan 2004: 191–193; Mamo
2013: 13–14).
At the Second Party Congress in 1963, Saloth Sar (later known as Pol Pot)
was elected Secretary General of the party, which had now changed its name to
the Worker’s Party of Kampuchea (WPK). At the same congress, Ieng Sary
and Nuon Chea were elected as his deputies (Baaz 2015a: 167; Kiernan 2004:
190; Slocomb 2003: 10). A few years later, in 1966, the party once again
changed its name – this time to the Communist Party of Kampuchea (CPK). As
the dominance of the Pol Pot and the more radical and utopian faction of the
party increased, the willingness to cooperate with Sihanouk diminished and
was eventually replaced by armed resistance and civil war (Baaz 2015a: 167–
168; Slocomb 2003: 13).
Sihanouk was eventually removed in a military coup in November 1970; but
this was done by Lon Nol, who was a right wing and US supported army
general, and not by the CPK (Mamo 2013: 8). Following this political
development, the former enemies of Sihanouk, who had proclaimed an
alternative Cambodian government from his exile in Beijing, and the KR
joined forces. By consequence, the on-going civil war escalated. At the same
time the relationship with Vietnam also deteriorated and in the latter half of
1971, the CPK decided to break away from its eastern neighbour entirely.
From then on, Vietnam was considered an “acute” enemy of the Cambodian
revolution (Baaz 2015a: 168; Mamo 2013: 13; Slocomb 2003: 16).
As the civil war continued, the KR took control over the government that
was in exile step-by-step, which, much thanks to the participation of Sihanouk,
enjoyed a high degree of legitimacy; not only domestically but also
internationally (Baaz 2015a: 168; Corfield 2009: 74, 77; Kiernan 2004: 298).
On 17 April 1975, the KR finally reached and took over Phnom Penh (see
further Chandler 2008: 249–254). When in power, the KR named the country
Democratic Kampuchea (DK) and launched a radical and utopian political
programme, including the evacuation of Phnom Penh and other bigger cities in
only a few days. Shortly after, Sihanouk was totally sidelined by the KR and
was placed under house arrest (Baaz 2015a: 168).
From 1977 onwards, the already difficult relations with Vietnam went from
bad to worse and developed into an open military conflict. It was, in fact,
Vietnamese troops that ended almost four years of KR rule on 6 December
1979, when they secured Phnom Penh after having launched a full-scale
invasion a few weeks earlier, on 25 December 1978 (Baaz 2015a: 169–170;
Corfield 2009: 94; Slocomb 2003: 43). During the short rule of the KR, some
1.7 million people had lost their lives.
Only a few days after the arrival of the Vietnamese, a new pro-Vietnamese
government that was made up by defected KR cadres, who were critical of the
Pol Pot faction, was installed in Phnom Penh. The new rulers did not recognise
the (r)evolution of the KPRP described above, including the two name changes
of the party (WPK and CPK). They instead declared themselves to be the true
successors of the original KPRP that was founded in 1951 and resumed the old
party name (Becker 1998: 432–433; Corfield 2009: 96; The Library of
Congress, Country Studies, Cambodia, 2014; Mamo 2013: 13; Slocomb 2003:
43–45). Cambodia was also renamed the People’s Republic of Kampuchea
296 Mikael Baaz: Bringing the Khmer Rouge to Trial
(PRK). Among the top leaders of the new ruling party were Heng Samrin
(who, among other things, was the General Secretary of the Central Committee
of the KPRP), Hun Sen (Prime Minster from 1985) and Chea Sim (first
Minister of the Interior and then, since 1981, President of the National
Assembly [NA] of the PRK).
Vietnam stayed in Cambodia for a decade and partly legitimised this de
facto occupation by pointing to the crimes of the Pol Potists. During this
period, Pol Pot and his followers – who had fled to the north-western parts of
the country, and militarily fought the new government and the Vietnamese –
continued to be recognised by the UN, as well as some major Western
countries and China, as the legitimate government of Cambodia. The PRK and
Vietnam, on the other hand, were, according to the logic of the Cold War,
supported by the USSR (Baaz 2015a: 171–172; Baaz and Lilja 2015a; Mamo
2013: 16, 18).
Following developments on the international scene in 1989, Hanoi,
however, declared that the Vietnamese forces should be pulled back from
Cambodia in September of the same year. This announcement raised the
possibility that the civil war in Cambodia, which at the time was of a rather
low intensity, would once again escalate. In order to avoid this, the UN
Secretary General Peréz de Cuellar convened a series of peace talks in Paris
with the aim to establish a plan for Cambodia’s future. Even though the talks
failed, they constituted the beginning of what would later become the
Agreements on a Comprehensive Political Settlement of Cambodia
(henceforth, the Paris Peace Agreements) that was signed in Paris on 23
October 1991 by the KPRP, on the hand, and the Coalition Government of
Democratic Kampuchea (CGDK), an anti-KPRP coalition, on the other hand.
The CGDK consisted of the following parties: (i) the KR; (ii) the Pour un
Cambodge Indépendant Neutre Pacifique et Coopératif (FUNCINPEC), a
party that was originally set up by Sihanouk in Paris in 1981 with the purpose
of serving as an alternative opposition party (to that offered by the KR) against
the Vietnamese supported KPRP government; and (iii) the Khmer People’s
National Liberation Front (KPNLF), a political front with a non-socialist and
non-royalist credo that was established in 1979. The Agreements also had a
number of international signatories, including: China, France, Thailand, USSR,
United Kingdom, USA and Vietnam (Berdal and Leifer 1996: 25–35; Ciorciari
2009: 42–43; Heininger 1994: Ch. 2; Son 2012: 166–172).
By Resolution 745, which was adopted on 28 February 1992, and following
the signing of the Paris Peace Agreements, the United Nations (UN) Security
Council (SC) established the UN Transitional Authority in Cambodia
(UNTAC) (S/RES/745). What followed was, at the time, the most expensive
and elaborate peace operation in the history of the Organization. Some 22,000
military and civilian personnel were organized at the cost of approximately 1.7
billion USD (Baaz and Lilja 2014; Berdal and Leifer 1996: 25, 36; Heininger
1994: 3).
The aim of the UNTAC was to take the lead in the agreed upon transitional
justice (TJ) process and to reconstruct Cambodia – a country that had been
destroyed by bad governance, decades of internal turmoil, civil war and gross
violations of human rights – by supervising or controlling all aspects of the
Mikael Baaz: Bringing the Khmer Rouge to Trial 297
government between March 1992 and May 1993 and, at the end of the mandate
period, by holding free and fair elections that would lead to a new liberal and
democratic constitution (see further the Paris Peace Agreements; Baaz and
Lilja 2014; Heininger 1994: Ch. 2).
Between 1989 and 1993, the KPRP officially abandoned the Marxism-
Leninist ideology in its entirety and changed its name to the Cambodian
People’s Party (CPP). During this period, the name of Cambodia was also
changed twice; first to the State of Cambodia in 1989 and then to the Kingdom
of Cambodia in 1993, when Sihanouk was also re-installed as King (Baaz
2015a: 171).
3 The Long and Winding Road to the ECCC Agreement
Neither the Paris Peace Agreements, nor the UNTAC mandate included any
explicit provision to bring the remaining KR leaders or any other party to
justice. This was because such a provision would not have been accepted by
the KR, a party to the Paris Peace Agreements, or for that matter, China, a
major supporter of the Pol Pot faction of the KR as well as a permanent
member of the UN SC (Berry 2012: 184; Ciorciari 2009: 43).
The KR for various political and tactical reasons boycotted the UN
sponsored national elections in 1993; a position that, however, contributed to
the movement’s increasing political marginalisation. In this regard, the
UNTAC mission, at least indirectly, contributed to paving the way for a future
criminal accountability process (Ciorciari 2009: 43, 62).
Without KR participation, the 1993 elections finished in almost a dead heat
between the CPP and the FUNCINPEC. After some negotiations, Hun Sen, the
leader of the CPP, and Norodom Ranariddh, son to the (former) king and
leader of the FUNCINPEC, reached a compromise and agreed to serve as Co-
Prime Ministers in Cambodia with the former King and Prime Minister
Sihanouk as King (once again). The KPNLF was transformed into the Buddhist
Liberal Democratic Party (BLDP) and secured no more than ten seats of 120 in
the NA. The party then decided to become a junior partner to the CPP-
FUNCINPEC coalition. This was probably not a very wise move, since only a
few years later the BLDP was dissolved (Ciorciari 2009:62).
After the end of the Cold War and the dissolution of the USSR, the US and
the West pushed the international society to establish a number of international
and mixed courts that aimed to, on the one hand, fight impunity and, on the
other hand, spread liberal and democratic values – in particular the rule of law.
It was in the wake of this development – including the establishment of the
International Criminal Tribunal for Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR) – that the idea of putting KR officials on
trial was advanced.
Before and during the UNTAC period, the US government had been
positive about including the KR in the process of reaching a peace settlement.
After the 1993-elections, which, as we know, was boycotted by the KR,
politicians, bureaucrats and scholars in the US slowly started turning their eyes
298 Mikael Baaz: Bringing the Khmer Rouge to Trial
away from peace and order, towards justice; and it did not take very long
before the US Congress had passed the Cambodian Genocide Justice Act,
which states that “… it is the policy of the United States to support efforts to
bring to justice members of the Khmer Rouge for their crimes against
humanity committed in Cambodia between April 17, 1975, and January 7,
1979” and that Yale University, with support from the US State Department,
had established the Documentation Center of Cambodia (DC-Cam) (Sec. 572,
the Cambodian Genocide Justice Act, 1994; Ciorciari 2009: 62–63).
Even though the KR was increasingly marginalised in Cambodian politics,
neither the UNTAC nor the RGC had succeeded in defeating the movement
militarily. Nevertheless, in late 1993, the movement was in decay mainly due
to weakened foreign political and economic support, decreasing recruitment
and numerous defections. In this situation, both the CPP and the FUNCINPEC
sought to secure defectors from the KR by offering amnesty, military or
government positions, land and money. The official justification behind these
activities was that they contributed to the splintering of the KR movement and
to national reconciliation. A more informal incentive of the parties was to
secure support so that they could tip the delicate political balance between the
two rivals that were sharing governmental power in their own favour,
respectively (Ciorciari 2009: 64). To speed up this process, the Cambodian
Parliament, in July 1994, voted unanimously through a decision that made it
illegal to belong to the KR (Ciorciari and Heindel 2014: 20; IHT 09/10-07-94,
referenced in Asia Yearbook of International Law, vol. 5, 1997: 395).
On 1 April 1996, Thomas Hammarberg was appointed Special
Representative of the UN Secretary General for Human Rights in Cambodia.
When he visited the country in June 1996 in his new capacity for the first time,
he realised that the KR trauma still casted a paralysing shadow over the
Cambodian society – practically, but even more so morally. The fact that no-
one had been held accountable for these atrocities had clearly contributed to
the creation of a culture of impunity, which, at the time, was omnipresent in
Cambodia (Hammarberg 2001).
In August 1996, Hun Sen and the CPP, with the consent from Prince
Ranariddh and the FUNCINPEC, successfully closed a deal with Ieng Sary,
who, by consequence, together with some 3,000 soldiers defected to the
government. The deal, among other things, granted the defector amnesty from
future prosecution (for genocide) (Ciorciari 2009: 64). Even though the
amnesty given to Ieng Sary was controversial, even within the CPP, both Prime
Ministers Hun Sen and Norodom Ranariddh were at the time, for different
reasons, reluctant if not totally averse to bringing the KR to justice.
But what was the UN’s position on a trial? In order to clarify this, during the
UN Commission on Human Rights session in April 1997, Hammarberg
informally suggested that a paragraph – mentioning the possibility of
international assistance to enable Cambodia to address past serious violations
of human rights – should be included in the Cambodia resolution. Following
this suggestion, the Commission included the following in its Cambodia
resolution 1997/49, which was issued on 11 April 1997:
Mikael Baaz: Bringing the Khmer Rouge to Trial 299
Requests the Secretary-General, through his Special Representative for Human
Rights in Cambodia, in collaboration with the Centre for Human Rights, to
examine any request by Cambodia for assistance in responding to past serious
violations of Cambodian and international laws as a means of bringing about
national reconciliation, strengthening democracy and addressing the issue of
individual accountability (Hammarberg 2001).
In June 1997, Hammarberg discussed the implications of the resolution with
the two Prime Ministers and emphasised that the UN might respond positively
to a formal request for assistance in addressing the KR crimes. Following this,
they changed their minds and accordingly, on 21 June 1997, formally requested
the UN and the international society for assistance in promoting KR
accountability for crimes committed between 1975 and 1979 (Ciorciari 2009:
64; Hammarberg 2001). The letter, sent by the two Prime Ministers to the UN
Secretary General, stated that:
Cambodia does not have the resources or expertise to conduct this very
important procedure. Thus, we believe it is necessary to ask for the assistance of
the United Nations. We are aware of similar efforts to respond to the genocide
and crimes against humanity in Rwanda and the former Yugoslavia, and ask
that similar assistance be given to Cambodia.
We believe that crimes of this magnitude are of concern to all persons in the
world, as they greatly diminish respect for the most basic human right, the right
to life. We hope that the United Nations and the international community can
assist the Cambodian people in establishing the truth about this period and
bringing those responsible to justice. Only in this way can this tragedy be
brought to a full and final conclusion (Hammarberg 2001; See also UN
A/51/930 and S/1997/488, 24 June 1997, italics added).
When it arrived, the letter was circulated among the members of the SC and
instantly it became clear that the content was controversial. The Chinese
Delegation, for example, made clear that it did not want to put the question on
the SC agenda (Hammarberg 2001). The Chinese position should be
understood in the light of Beijing’s long-standing support of the Pol Potists.
Back in Cambodia, just a few days after the letter to the UN was sent, it
was clear, however, that the relationship between the two coalition partners of
the government was not the best. In July 1997, the difficult relationship
between the two (former) allies escalated into open violence. Hun Sen and the
CPP eventually “won” the military confrontation and, by extension, declared
that not only FUNCINPEC, but also the Khmer Nation Party (KNP) – an
opposition party founded and led by Sam Rainsy, who was a former
FUNCINPEC member and Minister of Economy and Finance (1993 to1994) –
had been ousted. In addition, the NA was closed and non-CPP television and
radio stations were either taken over or closed. During July and August, the
UN received and investigated several reports of FUNCINPEC military officers
having been systematically killed. By consequence, the July 1997 clashes were
considered by several scholars to be a coup d'état and was widely criticised
abroad – not at least by the countries that were now promoting the
300 Mikael Baaz: Bringing the Khmer Rouge to Trial
establishment of a war crimes court; in particular the US, who argued in favour
of the establishment of a fully international court under Chapter VII of the UN
Charter (Ciorciari 2009: 65; Ciorciari and Heindel 2014: 22–23; Hammarberg
2001; Kamm 1998: 242–247).
It was only after the military coup in 1997 that the relations between Beijing
and Phnom Penh began to improve, most likely due to the fact that it was now
clear to China that the CPP would be the dominant power in Cambodian
politics once it had defeated and captured forces loyal to the FUNCINPEC.
This shifting balance in power made China realise that it had to revisit its
former strategy and engage with the leadership of the CPP if the country
should be able to reinvigorate its crumbling relations with Cambodia. By
consequence, China shortly turned into one of Cambodia’s most important
donors. The country’s long-standing policy of non-interference aligned very
well with the interests of the CPP elite. In response to the economic support,
among other things, Cambodia closed down the Taipei Economic and Cultural
Office in Phnom Penh; an action that should be considered as an active support
of Beijing’s “One China Policy” (Kung 2014).
In the meantime, the disintegration of the KR movement had sped up and in
June 1997 – when Son Sen, former DK Minister of Defence, was killed
together with his family on direct orders from Pol Pot – it was clear that the
remaining leadership of the movement was definitely falling apart via a bitter
internal struggle. Prior to his killing, Son Sen was (suspected to be) negotiating
the terms of his defection with the Government in Phnom Penh. Following this
incident, Pol Pot himself was “tried” by a people’s court, led by Ta Mok, for
the killing of Son Sen. The former leader of the once so powerful and much-
feared movement was found guilty as charged and sentenced to life in house
arrest (Ciorciari and Heindel 2014: 21, 23; Hammarberg 2001).
The UN responded to the letter from the RGC (mentioned above) that asked
for assistance in establishing the truth about the DK years and bringing those
responsible to justice, by appointing “… a group of experts to evaluate the
existing evidence and propose further measures, as a means of bringing about
national reconciliation, strengthening democracy and addressing the issue of
individual accountability” (A/RES/52/135, 12 December 1997, italics added).
After less than a year in house arrest Pol Pot died on 15 April 1998. His
death underscored the time aspect of bringing the former KR leaders on trial;
they were getting old and some of them also had serious health issues. Against
this background, only some two weeks after the death of Pol Pot, the US
circulated a draft SC resolution at the UN headquarters in New York,
proposing the establishment of an “International Criminal Court for Cambodia”
in The Hague, similar to the ICTY. The idea was met with little interest, not
only by China, but also by several other countries (Ciorciari and Heindel 2014:
23–24; Hammarberg 2001).
Ambassador Hammarberg met with Hun Sen in Phnom Penh shortly after
Pol Pot’s death. During this meeting the Prime Minister affirmed, in spite of
the changed situation, that he still supported the request for assistance in the
letter that was sent to the UN. He also said, however, that the recent US
activities had made the issue more complicated. Hun Sen was also concerned
that too much focus on the issue would, on the one hand, jeopardise further KR
Mikael Baaz: Bringing the Khmer Rouge to Trial 301
defections and, on the other hand, disturb the campaign for the upcoming
election that was to be held in July 1998. Regardless of this, he said he would
welcome the group of international experts as well as appointing a group of
Cambodians to discuss with them. The UN Secretary General accordingly
appointed a group of experts in July 1998. Shortly after, they arrived in
Cambodia, with the mission to explore the options for bringing KR leaders
before an international or national court. In February 1999, the experts
submitted their concluding report to the UN Secretary General and
recommended that the UN – in response to the earlier request of the RGC –
should establish an international ad hoc court to try KR leaders for crimes
committed between 17 April 1975 and 7 January 1979. One major reason
behind suggesting an international rather than a Cambodian court was the
group’s opinion that the Cambodian judicial system was simply too weak to
cope with such a delicate matter (Ciorciari 2009: 67; Hammarberg 2001; see
further the Report of the Group of Experts for Cambodia established pursuant
to UN GA Resolution 52/135).
The Report, which may be characterised as fairly detailed regarding a
possible future court design, was met with negative reactions from the RGC,
who had secured further defections during the latter half of 1998, including the
two key leaders Noun Chea and Khieu Samphan. Following this symbolically
important episode, Hun Sen suddenly argued that it was important to welcome
the defectors with “bouquets of flower” and “not with prisons and handcuffs”
and that “the time had come to dig a hole and bury the past” (Hun Sen, quoted
in Ciorciari 2009: 66 and Hammarberg 2001, respectively).
Following these statements, Hun Sen was criticised not only by various
international detractors and the national opposition, but also internally within
CPP for negotiating with the UN in bad faith (Hammarberg 2001). The
growing dispute between Hun Sen and the others reflected a genuine difference
in emphasis between various stakeholders.
John D. Ciorciari (2009: 66) writes:
To Hun Sen and the CPP, reconciliation required breaking apart from the
Khmer Rouge insurgency, bringing its leaders to heel, and securing their
political allegiance … A tribunal – or planning for a tribunal – was useful
primarily in achieving these objectives. Where the interests of justice and
pacification collided, Hun Sen favored the latter. To most of the UN officials
involved, the two processes – weakening the Khmer Rouge movement and
holding trials – were closely related and not necessarily sequential. Justice was
necessary to achieve reconciliation, they reasoned, and bringing KR crimes to
light would contribute to the movement’s dissolution.
He continues:
There were also clear political undertones to the dispute. To the CPP,
reconciliation implied peace and stability in Cambodia under its leadership. To
many international … officials involved in the process, reconciliation meant
developing a more liberal and tolerant multiparty democracy (italics added).
302 Mikael Baaz: Bringing the Khmer Rouge to Trial
On 6 March 1999, further development that had an impact on the forthcoming
negotiations followed. One of the remaining key leaders, Ta Mok – the former
Secretary of the southwest zone of DK as well as second Deputy Secretary of
the CPK and the one who led the trial against Pol Pot in 1997 – was arrested at
the Thai border in northern Cambodia and brought to a detention centre in
Phnom Penh. The week after his arrest, the Cambodian Foreign Minister
travelled to New York to meet the UN Secretary General and to deliver an
aide-mémoire. The document, which is dated 12 March 1999, states that the
surrender of Khieu Samphan and Noun Chea, as well as the arrest of Ta Mok,
meant the total collapse of the KR movement, both militarily and politically,
and that the RGC will now focus on priorities other than the KR; in particular
economic development and poverty alleviation. It appears, Hammarberg
(2001) writes,
… that the tribunal had been considered as a means of defeating the Khmer
Rouge. When this goal now had been achieved through other means, there was
no need to try anyone else than the one person who had refused to surrender: Ta
Mok. When referring to the process against him, international standards were
not mentioned.
All in all, the above clearly displays the unofficial or true motives of the RGC
to establish a war crimes court in Cambodia; Hun Sen and the CPP, put simply,
considered a court to be a possible tool to secure domestic power.
A few weeks prior to the presentation of the aide-mémoire, Secretary
General Annan had received the report from his groups of international
experts; a report that he submitted to the UN General Assembly (GA) and SC,
together with his own opinion that the KR leaders responsible for the most
grave crimes should be brought to justice and tried before a court that met
international standards regarding justice, fairness and due process of law, on 15
March 1999. All things considered, Annan’s position was that impunity was no
longer an option (Hammarberg 2011).
By now, the tensions between the RGC and some key states within the UN
were profound. Relations were characterised by mutual suspicion and made the
negotiations for the establishment of a court an intricate diplomatic and
political task. In an interview for Time Magazine, made on 22 March 1999,
Hun Sen added to the already difficult situation by saying:
It took me 20 years to destroy the political and military organization of the
Khmer Rouge and to bring the leaders of this organization to a court of law …
When we were fighting against them, when we were demanding that the leaders
of the Khmer Rouge be brought to trial, there were some people in some
countries, including America, who were against us … If foreigners have the
right to lack confidence in Cambodian courts of law, we Cambodians also have
the right to lack confidence in an international court of law. Why? Because
those who would mandate an international court used to support the Khmer
Rouge (quoted in Ciorciari and Heindel 2014: 25–26).
Mikael Baaz: Bringing the Khmer Rouge to Trial 303
Hor Namhong, the Cambodian Foreign Minister, expressed a similar point of
view when he met with Ambassador Hammarberg only a few days later, on 25
March; he said:
The international community talks about finding justice for the Cambodian
people … But what has the international community been doing vis-á-vis the
Khmer Rouge lately? Once the genocidal Khmer Rouge regime was toppled,
the so-called international community continued to support the Khmer Rouge.
The so-called international community forced Cambodia to accept the Khmer
Rouge as partners in the Paris Peace talks … It said nothing about responsibility
of the Khmer Rouge, let alone prosecution. But now that Cambodia has
achieved peace and reconciliation, they call for an international tribunal. Can
we trust them? This is the moral aspect. Now for legal aspects. We Cambodians
suffered most and are those who most want justice. Article VI of the Genocide
Convention does not prohibit prosecution by a national court --- We are ready to
accept international assistance in order to respond to moral and legal aspects,
and the desire for peace. Behind the so-called international community are one
or two countries who push for an international tribunal. Some countries
supported the Khmer Rouge until 1991. Do they love Cambodians more than
the Cambodians themselves? (quoted in Hammarberg 2001).
The antagonism between the RGC and the international community had grown
so bad that Hun Sen, who also participated in the meeting on 25 March, told
Ambassador Hammarberg, that he in fact believed that the role of the UN on
the KR issue had come to an end. The establishment of a court without
Cambodian consent, by the adoption of a UN SC resolution, did not seem
possible, since China still opposed the idea and would most likely exercise its
right to veto such a proposal. Hence, the possibilities to reach an agreement
seemed rather bleak in the beginning of 1999 (Ciorciari 2009: 66–68;
Hammarberg 2001).
In an attempt to move beyond the resulting stalemate, some members of the
international community started to consider an alternative model other than the
ones considered so far; namely a “mixed” or “hybrid” court. The US Senator
John Kerry, who knew Hun Sen previously, was the one that originally
proposed the, so far untested, idea to Prime Minister when he visited Cambodia
in April 1999. For the time being, the UN took no official position, hereby
opening up for the possibility of reaching a future compromise (Ciorciari 2009:
69; Interview, Hans Corell, Skype, January 2015; Mamo 2013: 10).
At the same time, realities on the ground continued to change. In May,
governmental forces arrested Kaing Guek Eav (the former Head of the
infamous Tuol Sleng Security Prison; a.k.a Comrade Duch). The custody of
Duch and Ta Mok along with close control over Khieu Samphan, Noun Chea
and Ieng Sary – as well as the CPP’s strong domestic position and the rapidly
improving positive relations with China – all added to the bargaining leverage
of Hun Sen. All things considered, Cambodia’s dependence on the West was in
decline. But, without UN participation, the CPP would not secure the stamp of
international legitimacy. By this, the hybrid model was gradually emerging as a
possible compromise for the UN as well as the CPP (Ciorciari 2009: 69;
Ciorciari and Heindel 2014: 27; Hammarberg 2001).
304 Mikael Baaz: Bringing the Khmer Rouge to Trial
Following usual underhanded negotiations, Hun Sen wrote a (new) letter to
the UN Secretary General on 17 June 1999, requesting UN assistance to draft
legislation for “a special national Cambodian court to try Khmer Rouge leaders
[which] would provide for foreign judges and prosecutors to participate in its
proceedings” (quoted in Ciorciari and Heindel 2014: 27). In response to the
request, the UN, this time represented by the UN Office of Legal Affairs,
initiated new negotiations with the RGC. The aim of the negotiations was to
reach an agreement “… on how such a court would have to be organized and
how it would have to function, if the United Nations was to provide or arrange
assistance to help establish it and help it to function” (Ciorciari and Heindel
2014: 27; UN A/57/769, 31 March 2003).
As negotiations started in August 1999, the UN insisted that the Court
should have a majority of international key personnel. This idea was, however,
rejected completely by the Cambodians and in September Hun Sen met with
Kofi Annan in New York and stubbornly offered three options to the UN: (i)
the UN could provide legal experts to collaborate with Cambodian lawyers
from other countries to assist the drafting of the necessary legislation as well as
providing judges and prosecutors to participate in the trial process at the
existing Cambodian court; (ii) provide legal advice without direct participation;
or (iii) simply withdraw. While in New York, the Cambodians also held
separate meetings with leading representatives of the US State Department,
since there appeared to be more understanding between the two governments
on this particular issue than between the RGC and the UN (Ciorciari and
Heindel 2014: 28; Hammarberg 2001; Mamo 2013: 10).
In this situation, the US officially proposed the up and coming idea of
establishing a special chamber within the Cambodian court system that would
operate with a supermajority vote – that is: [i]f the Court were to have a
Cambodian majority, the vote of at least one international judge would be
required for any judicial decision” (Ciorciari and Heindel 2014: 28;
Hammarberg 2001). In principle, the RGC welcomed the US initiative and, by
consequence, US diplomats began to pressure the UN Secretary General and
his legal co-workers in order to close a deal. However, Hans Corell – who at
the time was Under-Secretary General for Legal Affairs and the Legal Counsel
of the UN – argued that the supermajority idea was a recipe for paralysis and
insisted on an international majority of judges. The question of control was
also linked to the Court’s jurisdiction. Hun Sen wanted to try only four or five
of the people responsible, while Corell was not interested in discussing who
should be prosecuted, since, he argued, international law requires an
independent prosecutor to make such decisions. Hun Sen also pointedly argued
that future trials should exclude those who (like himself) had “helped to
overthrow the genocide” (Ciorciari and Heindel 2014: 29–30; Interview, Hans
Corell, Skype, January 2015; Hammarberg 2001).
On an overall level, Corell and the UN team remained sceptical of a court
with a Cambodian majority but eventually agreed, in July 2000, that the Court
would be “a Cambodian court with the participation of international judges and
prosecutors”. Corell, however, continued to argue that the UN should appoint
the international judges, an international Co-Prosecutor as well as two other
officials, namely: a deputy international prosecutor and a deputy director of
Mikael Baaz: Bringing the Khmer Rouge to Trial 305
Administration. The Cambodians had a different opinion and in January 2001,
the Cambodian NA, without UN consent, approved a draft law – the 2001 Law
on the Establishment of Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of Crimes Committed During the Period of Democratic
Kampuchea – that established Cambodian majorities in both chambers and
granted Cambodia control over all appointments. The Law was unacceptable
for the UN and after unsuccessful attempts to make it acceptable, Annan
withdrew Corell and his team in February 2002. The RGC responded to this
quite dramatic move by boldly stating that the UN withdrawal was, in fact,
“[n]o problem at all” (Ciorciari and Heindel 2014: 31–33; Interview, Hans
Corell, Skype, January 2015). Hereby, the possibilities of establishing a war
crimes court in Cambodia undeniably looked darker than ever before.
By proposing a UN GA Resolution requesting that the UN Secretary
General resumed negotiations without any further delay to conclude an
agreement with Cambodia in order to make the extraordinary chambers
function promptly, in December 2002 France and Japan, however, brought the
stalled process forward. The resolution passed and the UN was hereby “forced”
back to the negotiating table. Even though Corell and the UN team negotiated
skilfully and reached some further compromises, the Agreement Between the
United Nations and the Royal Government of Cambodia Concerning the
Prosecution Under Cambodian Law of Crimes Committed During the Period of
Democratic Kampuchea signed in 2003, and the 2001 Law on the
Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic
Kampuchea, as amended in 2004, largely turned out very favourable for Hun
Sen and the CPP (Ciorciari and Heindel 2014: 33–36; Interview, Hans Corell,
Skype, January 2015).
To complement this historical and political background to the KR
movement and establishment of the ECCC, the next section aims to provide a
structural and more detailed overview of the Court.
4 A Structural Overview of the ECCC
The ECCC is a special Cambodian court that receives international assistance,
which is provided by the United Nations Assistance to the Khmer Rouge Trials
(UNAKRT). The Court is, as partly indicated above, based upon and governed
by three foundational documents, namely:
(i) The 2001 Law on the Establishment of Extraordinary Chambers in
the Courts of Cambodia for the Prosecution of Crimes Committed
During the Period of Democratic Kampuchea, as amended in 2004
(henceforth the ECCC Law);
(ii) The 2003 Agreement Between the United Nations and the Royal
Government of Cambodia Concerning the Prosecution Under
306 Mikael Baaz: Bringing the Khmer Rouge to Trial
Cambodian Law of Crimes Committed During the Period of
Democratic Kampuchea (henceforth the ECCC Agreement); and
(iii) The 2007 ECCC Internal Rules (henceforth the ECCC Internal
Rules).3
The ECCC Law spells out the objective of the Court and regulates, inter alia,
the competence and composition of the ECCC, the work of Judges and
Prosecutors, the Office of Administration, the trial proceedings in the Court,
penalties, amnesty and pardons, status, rights, privileges and immunities,
locations and expenses of the Court and the working languages (English,
French and Khmer).4
The ECCC Agreement – that was signed by Sok An, Senior Minister in
Charge of the Council of Ministers, on behalf of the RGC, and Corell, Under-
Secretary-General for Legal Affairs and the Legal Counsel of the UN, on
behalf of the UN – regulates the cooperation between the UN and the RGC in
bringing those pointed out in the ECCC Law to trial and provides, among other
things, the legal basis and the principles and modalities for this cooperation.
Regarding criminal procedure, the ECCC Agreement states that:
The procedure shall be in accordance with Cambodian law. Where Cambodian
law does not deal with a particular matter, or where there is uncertainty
regarding the interpretation or application of a relevant rule of Cambodian law,
or where there is a question regarding the consistency of such a rule with
international standards, guidance may also be sought in procedural rules
established at the international level (Art. 12).
In addition, the document also regulates the appointment of and balance
between the international and national staff, how settlements of differences
between the Co-Investigating judges or the Co-Prosecutors should be handled,
the jurisdiction of the Court, the rights of the accused (including instructions
regarding counselling), the role and rights of witnesses and experts as well as
other practical arrangements.
The ECCC Law and the ECCC Agreement provide general principles rather
than detailed instructions. From this follow that the character and function of
the Court has been created over time, mainly by administrative heads, judges,
prosecutors and other individuals entrusted with various decision-making
power. The result of this work is reported in the ECCC Internal Rules
(Ciorciari and Heindel 2014: 41). The purpose of the Rules, which was adopted
on 12 June 2007, is thus:
3 So far, the ECCC Internal Rules has been revised nine times since they were originally
adopted on 12 June 2007. When references are made to the Internal Rules in this paper,
these relates to the eighth revised edition of the Document (12 August 2011).
4 Originally the Cambodians insisted that Russian also should be included as an official
Court language. This, however, Corell succeeded to avert after direct talks to the Russians
(Interview, Hans Corell, Skype, 26 January 2015).
Mikael Baaz: Bringing the Khmer Rouge to Trial 307
… to consolidate applicable Cambodian procedure for proceedings before the
ECCC and, pursuant to Articles 20 new, 23 new, and 33 new of the ECCC Law
and Article 12(1) of the ECCC Agreement, to adopt additional rules where these
existing procedures do not deal with a particular matter, or if there is
uncertainty regarding their interpretation or application, or if there is a question
regarding their consistency with international standards (p. 6).
With the overall aim to provide an overview of the quite complicated structure
of the ECCC, the remainder of this section is divided into five subsections. The
first one is about the jurisdiction and (ambitious) goals of the Court. The
second subsection briefly presents the key organs of the ECCC. The third
presents the basic judicial steps of prosecution in accordance with the three
foundational documents within the framework of the Court’s civil law system.
The fourth subsection displays the various national and legal backgrounds of
the ECCC staff and the fifth and final one deals with the funding of the Court.
4.1 Jurisdiction and Goals of the ECCC
The personal and temporal jurisdiction of the ECCC is limited to senior leaders
of DK and those who were most responsible for the crimes and serious
violations that were committed between 17 April 1975 and 6 January 1979.
The subject matter jurisdiction of the Court includes:
(i) Homicide (Art. 501, 503, 504, 505, 506, 507 and 508), torture (Art.
500) and religious persecution (Art. 209 and 210) under the 1956
Cambodian Penal Code;
(ii) Genocide (as defined in the Convention on the Prevention and
Punishment of the Crime of Genocide, 1948);
(iii) Crimes against humanity (including: murder, extermination,
enslavement, deportation, imprisonment, torture, rape, persecutions on
political, racial and religious ground, as well as other inhumane acts);
(iv) Grave breaches of the Geneva Conventions (1949);
(v) Destruction of cultural property during armed conflicts pursuant to the
Hague Convention for Protection of Cultural Property in the Event of
Armed Conflict (1954); and
(vi) Crimes against internationally protected persons under the Vienna
Convention on Diplomatic Relations (1961) (see Art. 1-8, the ECCC
Agreement).
Given the fact that the ECCC is a Cambodian court and no extraterritorial
jurisdiction has been claimed, the territorial jurisdiction of the Court is
restricted to Cambodian territory (Scheffer 2008).
308 Mikael Baaz: Bringing the Khmer Rouge to Trial
The chief goal of the ECCC is to provide justice to the Cambodian people –
those who died and those who survived. But it is also hoped that the trials will
serve “to educate Cambodia’s youth about the darkest chapter in [the]
country’s history”, “strengthen the rule of law and set an example for people
who disobey the law in Cambodia and for cruel regimes worldwide” and, by
extension, to reconstruct the Cambodian society (ECCC 2015a). The
expectations and the goals set out by the ECCC are thus fairly ambitious.
Keeping this in mind, let us now turn the focus to the various organs of the
Court.
4.2 The Organs of the ECCC
Even though the ECCC is commonly described as a hybrid court, it could,
according to John Ciorciari and Anne Heindel (2014: 43), just as adequately be
characterised as a “divided” court. This is simply because the ECCC is divided
into two sides, one Cambodian and one international, that have, among other
things, separate recruitment procedures and reporting structures. The chief idea
behind this unique design, with not only national and international Judges but
also national and international Co-Prosecutors, as well as national and
international Co-Investigating Judges is to provide Cambodian ownership of
the Court and, at the same time, to protect it from Cambodian political
interference, as well as making sure that the proceedings comply with
international legal procedural standards (Ciorciari and Heindel 2014: 44).
4.2.1 Co-Prosecutors and Co-Investigating Judges at the ECCC
The ECCC is unique not only for having national and international Co-
Prosecutors, but also for having national and international Co-Investigating
Judges. The structure of the ECCC secures investigatory powers to both the
Co-Prosecutors and the Co-Investigating Judges. Together, the two Co-
Prosecutors conduct preliminary investigations; prosecute cases throughout the
investigative, pre-trial, trial and appellate stages; process victim complaints,
and participate in judicial investigations. The Co-Prosecutors open a judicial
investigation by sending the Co-Investigating Judges an introductory
submission, which outlines the facts and names of the persons to be
investigated. The Cambodian Co-Prosecutor is appointed by the Supreme
Council of the Magistracy in Cambodia and the international Co-Prosecutor is
appointed by the same body; however, upon nomination by the UN Secretary
General (Ciorciari and Heindel 2014: 44; ECCC 2015b; ECCC 2015c).
The Co-Investigating Judges investigate the facts and names set out in the
introductory as well as supplementary submissions from the Co-Prosecutors.
After having concluded their investigation, the Co-Investigating Judges issue a
closing order containing either an indictment with an order to send the case for
trial or a dismissal order terminating the proceedings. During this process the
Co-investigating Judges also decide who can be a “civil party” in a future trial
(see further below) (ECCC 2015d).
Mikael Baaz: Bringing the Khmer Rouge to Trial 309
The Co-investigating Judges cannot investigate facts that are not set out in
the introductory submission unless they get permission from the Co-
Prosecutors in the form of a supplementary submission. They can also, after
having sought advice from the Co-Prosecutors, charge individuals not named
in the introductory submission. Hence, it is the Co-Prosecutors who control
which crime sites are to be investigated, while it is the Co-Investigating Judges
who make the final decision regarding which individuals are to be sent to trial
and for what allegations (Ciorciari and Heindel 2014: 44–46; ECCC 2015b).
4.2.2 Judicial Chambers at the ECCC
There are three Chambers in the ECCC, namely: (i) the Pre-Trial Chamber; (ii)
the Trial Chamber; and (iii) the Supreme Court Chamber. The Pre-Trial
Chamber’s only responsibility according to the ECCC Law is to decide on
disagreements between the pairs of national and international Co-Prosecutors
or Co-Investigating Judges. However, this responsibility was expanded by the
Internal Rules to also include appeals against orders from the Co-Investigating
Judges. Three Cambodian and two international judges make up the Chamber
and decisions require supermajority (ECCC 2015e; Interview, Hans Corell,
Skype, January 2015).
After the investigation is concluded, if a case is being sent to trial then the
trial hearings will be conducted before the Trial Chamber of the ECCC. It is
the Trial Chamber that will – based on the testimonies of witnesses, collected
evidence and arguments presented by the parties during trial – decide whether
an accused is guilty or not, order possible sentences and, if applicable,
collective reparations to victims and “civil parties”. The Trial Chamber
consists of three Cambodian and two international judges and a guilty verdict
requires supermajority (Baaz 2015a: 173; ECCC 2015e).
The Co-Prosecutors, the “Civil Parties” and the Defence teams can appeal
judgments and decisions issued by the Trial Chamber to the Supreme Court
Chamber. Four Cambodian and three international judges make up the
Supreme Court Chamber. Decisions and Judgments by the Supreme Court
Chamber require supermajority and are final (ECCC 2015e).
4.2.3 Other Judicial Offices at the ECCC
In addition to the Judicial Offices and Chambers referred to above, three more
organs should be brought up in this overview, namely: (i) the Victims Support
Section (VSS); (ii) the Defence Support Section (DSS); and (iii) the Office of
Administration. The organs will be dealt with in this order. Before this,
however, a brief detour on the civil party participation in the ECCC mentioned
above is necessary.
In any legal system, the prosecution is the legal party that is responsible for
presenting the case in a criminal trial against an individual who is accused of
having violated the law on behalf of society at large. Many legal systems fail to
give victims an active role within criminal proceedings and cast them merely
as “witnesses”. Despite sharing a common goal, the conviction of the one(s)
prosecuted, the interests of the prosecutor and the victims does not, however,
310 Mikael Baaz: Bringing the Khmer Rouge to Trial
necessarily overlap entirely. A punishment that follows a successful
prosecution most often results in imprisonment and/or issuing of fines. Such a
punishment, however, does not redress the suffered consequences of the crimes
against the victims. This exclusionary understanding of the role of the victim
could cause feelings of marginalisation and disempowerment, since the
prosecutions seek only to establish guilt and to punish the person who is
prosecuted. Retributive justice is only a limited one-dimensional form of
justice. Various needs of victims are, it is argued, often more multifaceted and
require additional means to prosecution – including: individual or collective
reparations, the establishment of an accurate historical understanding of the
suffered wrongdoings, as well as remembrance and memorialisation for the
victims – in order to establish what could be considered as justice for the
victims (Thomas and Chy 2009: 215-216).
The greatest difference regarding victim participation is to be found
between common law systems, on the one hand, and civil law systems, on the
other hand. Common law systems adopt a restrictive approach to victim
participation and consider victims as having a rather limited role to play in
criminal trials, which is very much restricted to the provision of testimonies.
Civil law systems, on the contrary, permit victims to play a much more active
role in criminal law. Most legal systems based on the French version of the
civil law model permits victims to intervene directly and as full parties to
criminal proceedings with rights analogous to those of the prosecution and
defence. Such victims, known as “civil parties”, may thus, for example, require
investigatory actions and question witnesses, including expert witnesses, and
the accused (International Federation for Human Rights 2012; Thomas and
Chy 2009: 216-217).
Given Cambodia’s colonial legacy, the country’s pre-KR legal system was
heavily inspired by the French interpretation of civil law. The same is true for
the legal system that was developed after 1979 – in particular, after 1991. The
new Cambodian Code of Criminal Procedure, for example, thus mirrors French
law in allowing victims to participate in criminal proceedings as civil parties
and to request individual reparations (Kong 2012: 7–8; Thomas and Chy 2009:
217).
Even though international as well as regional human rights documents have
long expressed a general right to a remedy, it is only recently that victims have
received specific recognition of their rights at the international level. No such
provisions are, for example, to be found in either UN S/RES/827 (1993) or
S/RES/955 (1994), which establishes the ICTY and the ICTR, respectively.
Being heavily influenced by the common law adversarial model, these two ad
hoc tribunals solely focus on retributive justice. The only purpose of the Courts
was the prosecution of the individuals who were responsible for crimes within
their jurisdiction. Even though Resolution 827 made it clear that the
proceedings in the Court should not “prejudice to the right of the victims to
seek, through appropriate means, compensation for damages incurred as a
result of violations of international humanitarian law” it was clear that such
compensation, as in the common law systems, must be claimed by the
initiating of a separate civil action in a domestic court (Ciorciari and Chy 2009:
228–229).
Mikael Baaz: Bringing the Khmer Rouge to Trial 311
It is only by the Rome Statute of the International Criminal Court – that was
adopted in 1998 – that a significant step toward the realisation of victim’s
rights on the international stage was taken. The Statute allows victims to
participate in the proceedings before the ICC by giving them rights to be
represented, present their views and concerns at stages of the proceedings
where their interests are implicated, and to obtain reparations (Ciorciari and
Chy 2009: 229; Art. 68 and 75, the Rome Statute, 1998).
Even though the Rome Statute should be considered an important step
regarding victims’ rights, it is important to note that the rights are not
unlimited, but restricted by the discretion of the Court (Art. 68:3, the Rome
Statute, 1999). This model for victim participation is based on schemes found
in civil law systems in general and the UN General Assembly Declaration,
“Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law” (A/RES/60/147, 2005) in
particular (Ciorciari and Chy 2009: 229–230). The 2005 UN GA Declaration is
best described as a “codification” of discussions and developments regarding
the participation of victims in criminal proceedings that had been going on
within the international society since the 1980s.
Resulting from the decision to make the ECCC an integral part of the
Cambodian legal system – and, by consequence, the applicability of
Cambodian procedural law – and the general trend in ICL for the inclusion of
the victims described above, the Court allows victims to participate in the
proceedings. Neither the ECCC Law nor the ECCC Agreement, however,
provides any explicit provisions for such participation. Such jurisprudence and
practice directions have instead been left for the Court to develop and are, by
consequence, to be found in the ECCC Internal Rules (Ciorciari and Chy 2009:
231).
According to the Internal Rules, the purpose of the civil party participation
is to support the prosecution and to seek collective and moral reparations
(Werner and Rudy 2010: 302). In theory, the victim participation scheme is
very progressive and is one of the major innovations of the Court. The ECCC
Internal Rules provide for three modes of participation for victims and other
survivors of the KR period. Firstly, any person, organisation or other sources
who witnessed or were victims of crimes within the jurisdiction of the ECCC,
or those who have knowledge of such crimes, may file a complaint with the
Co-Prosecutors, who then take the interests of the victims into account when
deciding whether to initiate a judicial investigation or not (Art. 49:2, the ECCC
Internal Rules). Secondly, victims of crimes within the jurisdiction of the
ECCC are entitled to participate in the trials as civil parties. By this, they are
recognised as full parties to the trial and are permitted to seek collective and
moral reparations (Art. 23s, the ECCC Internal Rules). Finally, victims and
other survivors may voluntarily participate in the proceedings as witnesses
(Ciorciari and Chy 2009: 232).
In order to make effective victim participation in the proceedings possible,
the drafters of ECCC Internal Rules provided the establishment of a victims
unit, the VSS. The VSS is a central contact point between the ECCC and the
victims, including their representatives. In this, the Section:
312 Mikael Baaz: Bringing the Khmer Rouge to Trial
… informs Victims about their rights relating to participation and reparations,
and enables them to file complaints and Civil Party applications to the ECCC if
they wish to do so --- This entails the provision of assistance in obtaining legal
advice or a lawyer, supporting legal representatives and facilitating the grouping
and collective representation of Victims. The VSS supports the work of the Co-
Prosecutors and the Co-Investigating Judges by processing complaints and Civil
Party applications and preparing reports for these offices. It also maintains
contact with Victims and their lawyers regarding the status of their complaints
and applications, and keeps them updated regarding developments in individual
cases --- Lastly, the VSS [also] ensures the safety and well-being of Victims
who participate in the proceedings. This involves ensuring that Victims
properly understand the risks sometimes inherent in such participation, as well
as providing them with protective measures and other assistance, like
psychosocial support (ECCC 2015f).
The role of the Defence Support Section (DSS) is to ensure fair trials through
effective legal representation of the accused. Among other things, the Section
is responsible for providing those accused with lawyers to defend them as well
as providing available legal and administrative support to defence lawyers who
are assigned to work on cases at the ECCC. In addition, the DSS acts as a voice
for the defence in the media and at various outreach events; communicates
with other courts as well as various NGOs; runs training courses; and organises
internships (ECCC 2015g).
To match the Co-prosecutors, each accused has a defence team made up by
two or more Co-Lawyers, at least one international and one Cambodian, who
are supported by various assistants (ibid; see also ECCC 2015h, ECCC 2015i;
ECCC 2015j; ECCC 2015k; ECCC 2015l).
Led by a Cambodian Director and an international Deputy Director, the
Office of Administration was created in order to serve the aforementioned
Chambers and Judicial Offices. Besides providing the overall coordination and
guidance to the various organs of the ECCC, the Office is also in charge of
relations with the parties to the ECCC Agreement and the donor community.
Another important task of the Office of Administration is to draft and review
all ECCC’s official documentation (ECCC 2015m). By this, the Chambers and
Judicial Offices of the Court have been introduced and discussed. Next, a brief
summary of the basic judicial process in the ECCC will be presented.
4.3 A Summary of the Basic Judicial Process in the ECCC
Prosecution before the ECCC, in accordance with the ECCC Law, the ECCC
Agreement and the ECCC Internal Rules within the framework of a civil law
system, can be schematically summarised as follows.
A case is initiated by a written submission from the Co-Prosecutors
requesting the Co-Investigating Judges to open a case and to propose charges.
The Co-Investigating judges are only entitled to consider facts that are set out
in the submission(s) from the Co-Prosecutors, including the initial submission
and, if applicable, supplementary submissions and may charge any person
therein. Parties may appeal against decisions of the Co-Investigating Judges,
Mikael Baaz: Bringing the Khmer Rouge to Trial 313
apply to annul investigative action or request a sanction against any person
allegedly interfering with the administration of justice to the Pre-Trial
Chamber. After this, the Co-Prosecutors write a final submission to request that
the Co-Investigating Judges indict or dismiss the case. At the end of their
investigation, the Co-Investigating Judges write a closing order to decide
whether to indict or dismiss charges, as well as deciding who are entitled to
participate as civil parties in a coming trial. This order can be appealed to the
Pre-Trial Chamber. If a case finally leads to a trial, the Co-Prosecutors, the Co-
Lawyers, the accused, as well as the Civil Parties put forward and examine
evidence, and witnesses before the Trial Chamber, which, by the application of
a supermajority vote, present a judgment and, if appropriate, reparations to the
victims. The Trial Chamber decision can be appealed to the Supreme Court
Chamber. Decisions made by the Supreme Court Chamber are, however, final
(ECCC 2015n).
4.4 The Various National and Legal Backgrounds of the ECCC Staff
The national and legal background of the ECCC staff is, put carefully, diverse.
Below follows some examples to illustrate this claim. The current international
Co-Prosecutor, Nicholas Koumjian, for example, is American, while his
predecessor, Andrew Cayley, is British. Prior to his appointment to the ECCC,
Koumjian was Senior Appeals Counsel for the prosecution of the former
President of Liberia, Charles Taylor, at the Special Court for Sierra Leone. He
has also represented clients in the ICC, has been head of the UN-funded
Serious Crimes Unit in East Timor and has served as a trial attorney at the
ICTY and the State Court of Bosnia and Herzegovina (ECCC 2015o).
The current international Co-Investigating Judge is from the US and earlier
worked as senior trial attorney in the ICTY for 17 years. Mark Brian Harmon’s
predecessors as the Co-Investigating Judge – Siegfried Blunk and Laurent
Kasper-Anserment – were educated in West Germany and Switzerland,
respectively (ECCC 2015p). The current international judges in the judicial
chambers originate from and are educated in, for example: Austria, France,
Poland and Sri Lanka, while the defence teams include individuals from the
Netherlands and France (see further, for example: ECCC 2015q; ECCC 2015r;
ECCC 2015s; ECCC 2015t; ECCC 2015u).
Considering the above, it could be argued that an “entourage” of ICL is
under development (Interview, Journalist, Phnom Penh, November 2014); i.e.
an informal group of jurists who travel from one site to another and sometimes
work as a prosecutor, while other times as a judge or even a defence counsel,
but always highly paid and fairly isolated from the context in which they work.
Due to the specific scope of this article, as well as other limitations, this
observation and possible following consequences will not be elaborated upon
any further here.
The Cambodian counterparts, most of them holding high positions within
the Cambodian state and/or in the CPP, are educated not only in Cambodia but
also and even more so in countries like East Germany, the USSR and Vietnam.
Put differently, they are trained in socialist legal thinking; a legal system that
314 Mikael Baaz: Bringing the Khmer Rouge to Trial
has a number of unique qualities, including the closeness between the State and
judiciary and, by extension, the non-adversary character of the judicial process.
One very concrete result of the interaction between all these individuals –
international as well as Cambodian, with their rather diverse legal background
– is the ECCC Internal Rules.
4.5 The ECCC’s Funding
The ECCC has three different sources of funding, namely: (i) the UN budget;
(ii) the Cambodian national budget; and (iii) voluntary funds contributed by
foreign governments. The UN bears the “… expenses of the foreign
administrative officials and staff, the foreign judges, Co-investigating judge
and Co-prosecutor sent by the Secretary-General”, while “[t]he expenses and
salaries of the Cambodian administrative officials and staff, the Cambodian
judges and reserve judges, investigating judges and reserve investigating
judges, and prosecutors and reserve prosecutors” is borne by Cambodia. The
ECCC may also “receive additional assistance for their expenses from other
voluntary funds contributed by foreign governments, international institutions,
non-governmental organizations, and other persons wishing to assist the
proceedings” (Art. 44 new, the ECCC Law).
The above completes the structural overview of the ECCC and the focus
will now be directed towards an analysis of the Court’s unique and complex
character as well as some resulting consequences.
5 The ECCC – An Experimental, Complex, Complicated and
Contradictory Construction
According to the official historical narrative the ECCC was, as we know,
created primarily to deliver justice to the victims of the KR’s radical social
revolution that was carried out during their three year, eight month and twenty
day rule during the latter half of the 1970s and secondarily to advance other
transitional justice goals.
Seeking to fulfil such elevated goals as the ECCC has would be a challenge
for any court of law, since criminal trials are in fact not designed to carry out
most of the needs required to adequately address past traumas (Ciorciari and
Heindel 2014: 4). Even so, criminal courts are often, and to an increasing
degree, considered important parts in various societal responses that seek to
handle past mass atrocities (Baaz 2015b). If they function well, criminal courts
can play important roles within wider processes of transitional justice; in
particular, if they are combined with other arrangements such as: truth
commissions, reparations programmes and various kinds of institutional
reforms (The International Center for Transitional Justice 2015). If they fail,
however, they can instead quash human hope, contribute to the falsification of
history and consume resources that are better used elsewhere. This is especially
true if a court is established on dubious grounds, has an opaque and complex
Mikael Baaz: Bringing the Khmer Rouge to Trial 315
structure, weak institutional safeguards against political interference and
improper administrative behaviour. Even if agency matters, the establishment,
structural design and political context of a court can make its functional
success more or less likely (Ciorciari and Heindel 2014: 4; cf. Baaz 1999).
The remainder of this section is divided into three sub-sections and
discusses as well as analyses the following: (i) the dubious motives behind the
establishment of the ECCC; (ii) some consequences following the complex,
and complicated, not to say contradictory, structure of the Court; and (iii) the
(continuing) problem with political interference in the judicial process.
5.1 The Road to the ECCC – Dubious Motives
David Chandler (2008) has shown that there have existed a number of various
official policies by the Cambodian Government in regard to the KR atrocities.
The first policy, applied during the 1980s, was aimed at encouraging “hostile
recollections”. Among other things, this policy included the establishment of
various physical memorial sites, such as the Toul Sleng Genocide Museum and
Choeung Ek Genocidal Center. The chief idea behind this policy was to “never
forget” the horrors of the leaders of DK. The “extreme actions” of Pol Pot–
Ieng Sary faction were also referenced in order to make the Vietnamese
invasion of Cambodia legitimate and, by extension, legitimising the KPRP and
PRK (Hughes 2005). All in all, the very unclear borders between the new
rulers in Phnom Penh and their antagonists made it very important to, on the
one hand, establish a distance between themselves and the Pol Pot–Ieng Sary
faction and, on the other hand, “‘induce and cultivate negative memories’
towards the former regime”, in order to establish “a new Cambodian national
history” (Brown and Millington 2015: 31). This was not only done by
constructing various physical memorial sites, but also by the instigation of, for
example, the Day of Anger, which was supposed to be celebrated annually on
20 May (Baaz and Lilja 2015a; Hughes 2005; Manning 2011: 5, 14). The PRK
tried hard to make a distinction between their own “legitimate” communism
and, as they understood it, the perverted, not to say fascist communism
practised by the Pol Pot–Ieng Sary faction (Brown and Millington 2015: 32).
During the 1990s, Hun Sen and the CPP ambivalently, slowly and gradually
changed their strategy vis-à-vis the KR legacy. Instead of focusing on never
forgetting the horrors of the Pol Pot–Ieng Sary faction, the new policy aimed at
promoting a policy of “collective amnesia” – the time was, as we know, now
considered ripe to “dig a hole and bury the past”. The rationale underlying this
strategy was, as indicated previously, that both CPP and FUNCINPEC needed
to secure as many defectors as possible from the KR in order to tip the political
balance in their own favour, respectively (Baaz and Lilja 2015a; Caswell 2010:
38).
In 1997, after discussions with UN representatives, Hun Sen, however,
realised that putting some senior KR officials to trial could be advantageous.
By this move, at least three goals could be achieved. Firstly, the CPP could not
only establish a gap between themselves and the Pol Potists, but also the KR
movement in its entirety. Secondly, the CPP could also establish the official
316 Mikael Baaz: Bringing the Khmer Rouge to Trial
narrative of themselves as the ones who did not only established peace but also
justice in Cambodia. Finally, by bringing some KR leaders to justice, the CPP
could in addition satisfy the growing international demand to bring the cultural
of impunity to an end. In mid-1997, all this seemed attractive to the RGC and
to establish a court thus seemed to serve its purpose; at least as long as the
trials could be directed by the Hun Sen and the CPP (Baaz and Lilja 2015a).
However, after Hun Sen had secured a political monopoly through the
military coup in July and August 1997, Pol Pot had died in April 1998, further
defections had been secured in December 1998, Ta Mok had been arrested in
early 1999 and given that the political relations between Beijing and the CPP
improved significantly, the RGC made a 180-degree turn. To establish an
international court no longer seemed, on an overall level, to serve the interest
of Hun Sun and the CPP. At the same time, Cambodia’s dependence on the
West was now much less than it was back in the early 1990s.
Cambodia’s international legitimacy was, however, not very high, and to try
the old Pol Potists domestically without international participation or not at all
would, needless to say, not change this. Hence, the most favourable outcome
for Hun Sen and the RGC would be to establish a hybrid court; one that they
could control and use to construct the desired national meta-narrative. Such a
court could satisfy the various goals of the regime simultaneously and further
strengthen the CPP grip on power. This was noted by Corell, who in 1999 had
already argued that: “[t]he Cambodian Government does not intend to allow a
free, fair, and non-selective trial process of the all Khmer Rouge leaders living
in its territory, but rather a carefully monitored process under its full political
control” (Corell quoted in Ciorciari and Heindel 2014: 196).
In order to not lose the initiative globally, however, some of the major
Western powers, most notably, the US, Japan and France, were willing to meet
the RGC. The motives for this were complex and composed. But, on an overall
level they had to do with the spread of liberalism and the individualisation of
criminal responsibility. But also, of course, with the problematic past of many
Western countries in Southeast Asia and Cambodia, which, among other
things, included support for Pol Pot until at least 1991, which was long after
the DK atrocities were well known. Put simply, many countries felt guilty
conscience (Interview, Hans Corell, Skype, 26 January 2015).
Corell has concluded that there were “many involved behind the scenes”,
which explains why “the UN Secretariat was obliged to accept features that
have led to the difficulties that now exist” (Corell quoted in Ciorciari and
Heindel 2014: 39). According to some observers, however, the result of the
negotiations was the best possible outcome under difficult circumstances.
Scholars Gregory H. Stanton and Peter Leuprecht capture the spirit of this
position in a good way by arguing that “perfection is the enemy of justice” and
“rather this tribunal than no tribunal” (quoted in Ciorciari and Heindel 2014:
35).
Supporters also believed that the ECCC Agreement gave the UN enough
power to keep the ECCC on track. This misguided optimism was, as we shall
see, founded on the expectations that the UN would stay active and make sure
that the Court fulfilled international standards as it started to operate (Ciorciari
and Heindel 2014: 35).
Mikael Baaz: Bringing the Khmer Rouge to Trial 317
The negotiation result between the UN and the RGC, however, did not lack
critics besides Corell. Former Co-Prosecutor Robert Petit has argued that, “the
creation of the ECCC [is] probably the clearest example in International
Criminal Law of a judicial process beset by political wrangling and used for
other ends than justice” (Petit 2011: 190). According to Mike Jendrzejczyk, the
ECCC embodies “the lowest standards yet for a tribunal with U.N.
participation” as well as that “with Cambodia’s judiciary at the center of the
tribunal, the agreement ensures that it will be politics and not law that
dominate the tribunal’s work”. In fact, Amnesty International went as far as
arguing that the ECCC would “not only threaten the integrity of the legal
process for [Cambodia but also] would set a dangerous precedent that could
compromise fair trial standards for any future or mixed tribunals” (quoted in
Ciorciari and Heindel 2014: 35–36).
The ECCC is arguably the product of vested interests and compromises; it is
an awkward and fragile legal construction, heavily dependent on a government
with a dubious record, both politically and judicially, and requires the
cooperation of two sides – the national and international – with a difficult
history and a long record of mutual distrust. Most of the problems that the
Court faces are consequences of the fact that the ECCC is a compromise; the
Court was born with an ambiguous, not to say schizophrenic, legal identity –
neither fully international nor fully domestic in nature. Neither the ECCC
Agreement, nor the ECCC Law regulates the relationship between the ECCC
and other Cambodian courts (Ciorciari and Heindel 2014: 42).
On an overall level, the ECCC structure, which will be analysed in more
detail in the next subsection, has “presented even its most talented and
committed personnel with an uphill battle for functional effectiveness”
(Ciorciari and Heindel 2014: 40).
5.2 The ECCC – A Legal Construction Sui generis
Any international or hybrid court, needless to say, faces various challenges –
ranging from the very simple to the extraordinary. There are many reasons for
this and one of the more important has to do with the character of the
foundational documents that establish these courts. Since foundational
documents are political compromises and most often framework agreements,
they are full of holes. Much of the de facto character of a new court is instead
created over time, by practices installed by its staff – in particular
administrative heads, prosecutors and judges, and often individuals with
diverse national and legal background. Hence, applicable rules often take years
to finalise; this is time that courts with short timespans do not really have.
As the first civil law-based mass-crimes court, the ECCC has been forced to
establish new legal figures and solutions. In particular the Court has had to
manage the difficult task of combining the international and national aspects
that follow from its unique hybrid character. Below, four distinct sets of
challenges will be raised and discussed: Firstly, the ECCC has struggled to
manage an efficient, transparent and legitimate judicial process in a legal
construction that is staffed by co-officials with investigatory power and
318 Mikael Baaz: Bringing the Khmer Rouge to Trial
comprises two chambers of appeal. Secondly, the Court has wrestled with the
pairing of substantive national and international law, both of which present
interpretative challenges and disputes following the temporal jurisdiction of the
ECCC in the late 1970s. Thirdly, the Court has been forced to decide what
blend of international and domestic procedural rules to apply. Finally, the
ECCC is, to a great extent, funded by external means (cf. Ciorciari and Heindel
2014: 41–42).
5.2.1 The “Cos”
The ECCC is unique in having both national and international Co-Prosecutors
and Co-Investigating Judges. Both pairs of Prosecutors and Investigating
Judges as well as the offices that they co-lead – the Office of the Co-
Prosecutors and the Office of the Co-Investigating Judges, respectively – have
investigatory powers and conduct preliminary investigations of crimes within
their jurisdiction. Following the French-civil law tradition that directs the
ECCC, the investigating judges are given the primary investigatory role. The
Co-Investigating Judges can, as we know, only investigate facts addressed in
the introductory submission unless they are given permission from the Co-
Prosecutors in the form of a supplementary submission. By this, the Co-
Prosecutors control which crime sites are being investigated, while the Co-
Investigating Judges make the final decision on which persons to send to trial
and on what charges.
In comparison with the adversarial systems, all evidence is confidentially
collected by the Office of the Co-Investigating Judges and placed in
evidentiary case files for review by the Court in inquisitorial systems. In
practice this means that the longest part of a case is confidential. The aim of
the trial is to verify rather than fully air the detailed findings. Hence, the public
cannot see justice in action. Given the didactic role of the ECCC, this is a
problem. Another problem with the civil law approach is that the burden of
becoming familiar with the context, structure and working of the KR
movement, as well as sorting and examining the vast amount of documents of
potential witnesses of crimes that took place more than 30 years ago is
enormous (Ciorciari and Heindel 2014: 46-47).
In seeking to deal with this difficulty, the ECCC has decided to allow the
Trial Chamber to request an expert opinion on any subject deemed necessary to
the proceedings (Art. 31). One such subject is the “rise and fall” of the KR
movement. Accordingly, the Court has heard several historians, including
David Chandler, Philip Short and Elisabeth Becker (Decision on Assignment
of Experts, Case File Dossier No. 002/19-09-2007/ECCC/TC, 5 July 2012).
The usage of expert witnesses in this regard is by no means unproblematic.
When Chandler testified in Case 002, for example, it was clear that he, in his
ambition to write a historical narrative, had to make assumptions when
documentary sources were missing (Mamo 2013: 30). This, of course, fits
poorly with the evidence requirements that could be demanded in criminal
trials.
In this regard, it is also important to remember that for all major political
events – perhaps in particular where the criminal responsibility of political
Mikael Baaz: Bringing the Khmer Rouge to Trial 319
leaders is at stake – there are many stakeholders and thus multiple, often
conflicting, interests and truths (Koskenniemi 2011: 180). During his
testimony, Chandler also said: “I’ve never found a person who had a neutral
view on Democratic Kampuchea” (quoted in Mamo 2013: 32). Put differently,
memory, history and, by extension, truth are “polysemic” and “polyvalent” in
nature (Hasian Jr. and Carlson 2000); thereby, to construct a truth of events
that could serve as a meta-narrative for the future and to move beyond the
traumatic events that the KR era undoubtedly represents is not only difficult
but also characterised by conflict – regardless of whether it is possible or not
and/or desirable or not – and, by consequence, this develops into a “struggle
over memory” (Baaz and Lilja 2015a; Baaz and Lilja 2015b; see also
Alexander 2004; Edkins 2003).
Another complication in this respect is that much of the documentary
evidence used in the ECCC comes from a single institution, namely the earlier
mentioned DC-Cam. Given the rationale for the creation of the institution, its
neutrality has been challenged by some of the defence teams. According to the
Director of DC-Cam, the institution has three objectives: (i) studying history to
promote national reconciliation; (ii) teaching the history of DK to
schoolchildren and the public; and (iii) creating a research centre for the future
study of Cambodia (Mamo 2013: 24). One serious problem in this respect is –
according to, among others, Arthur Vercken, who is Khieu Samphan’s
international counsel – that the documents that have been developed by DC-
Cam are integrated directly into the case files and then taken for granted by the
Prosecutors. Besides the problem of biases, it should also be noted that the
documents are not legal investigations and have not been conducted to such a
standard (Mamo 2013: 24, 27).
According to Martti Koskenniemi (2011) there is ultimately a basic tension
between the legal focus on establishing individual responsibility and historical
explanations; the determination of individual responsibility demands a context
for evidence and the contestation of context will, generally speaking, proceed
on the level of framing, not on the level of particular facts. Contesting the
frame, threatens to turn a trial like Case 002 into a circus. But preventing the
frame from being questioned increases the danger of turning the trial into a
show trial (cf. Baaz 2015b; Baaz and Lilja 2015b). In this lies a paradox.
[T]o convey an historical “truth” to its audience, the trial will have to silence the
accused. In such case, it ends up as a show trial. In order for the trial to be
legitimate, the accused must be entitled to speak. But in that case, he will be
able to challenge the version of truth represented by the prosecutor and
relativise the guilt that is thrust upon him by the powers on whose strength the
Tribunal stands. His will be the truth of the revolution and he himself a martyr
for the revolutionary cause (Koskenniemi 2011: 197).
Considering the above, especially in the light of the fact that one important
goal of the ECCC is seeking to learn the truth about what happened in DK and
why it happened, it is difficult to see the advantages of giving the principal
investigatory responsibility to the investigating judges (and, by extension, the
expert witnesses), since their time and capacity are limited and, by
320 Mikael Baaz: Bringing the Khmer Rouge to Trial
consequence, their findings selective, in comparison with having several
separate defence teams and the Office of the Prosecutor, each of which actively
seeks and contests evidence. The chief idea behind the chosen structure was a
belief that it would be possible to combine the best of civil and common law –
that is, an efficient judge-led investigation followed by shorter and adversarial
inspired trials with a few key witnesses (Ciorciari and Heindel 2014: 47).
In civil law systems trial judges often rely on written witness statements in
lieu of oral ones when the statements do not speak to the acts or conduct of the
accused. But in the ECCC, without questioning the relevance and reliability of
the witness statements taken by the Office of the Co-investigating Judges, the
Trial Chamber believes that they have little if any probative value or weight “if
the witness does not testify at trial due to the lack of prior opportunity for
confrontation” (Ciorciari and Heindel 2014: 48; cf. Baaz and Lilja 2015a).
To summarise: the ECCC procedure – with two separate investigations,
confidential preparation of case files containing all evidences, followed by an
oral hearing of the evidence – which combines full length judicial
investigations (civil law) with full-length trials (common law) is repetitive and
slow. International Co-Prosecutor Koumjian has said: “Most Court proceedings
are like watching paint dry” (Interview, International Co-Prosecutor Nicholas
Koumjian, November 2014). According to former ECCC Judge Silvia
Cartwright the proceedings represents the “worst possible outcome” (quoted in
Ciorciari and Heindel 2014: 48).
In addition to this, the inefficiency of the ECCC is also a result of the
incorporation of a Pre-Trial Chamber. This body was originally incorporated to
the Court structure for the sole purpose of self-guarding the ECCC against
political interference. Under the ECCC Law, the only responsibility of the Pre-
Trial Chamber is to solve disagreements between the “cos” (Interview, Hans
Corell, Skype, January 2015). The ECCC Internal rules, however, expand the
jurisdiction of the Pre-Trial Chamber to include appeals against orders of the
Office of the Prosecutors. Pre-Trial Chamber decisions are not appealable, but
the Internal Rules do not regulate the extent to which its appellate decisions
bind the Trial Chamber. Consequently, before being finally resolved, it is
possible for core questions to be raised at least four times before different
judicial bodies: (i) the Office of the Co-Investigating Judges; (ii) The Pre-Trial
Chamber; (iii) the Trial Chamber; and (iv) the Supreme Court Chambers. All in
all, the hybrid, complex and inconsistent structure of the ECCC has in various
ways severely compromised its operation and efficiency (Interview, Hans
Corell, Skype, January 2015).
5.2.2 International and Domestic Substantive Law
Adding to the problems of pairing two hybrid investigatory offices and
managing a pair of appeals chambers is the fact that the ECCC also has to
combine elements of international (criminal) law and domestic Cambodian
law. Applying international and domestic law simultaneously is always a
challenge. The ECCC, however, faces particular challenges due to the scope of
its temporal jurisdiction. It is the only international or hybrid international
criminal courts to deal with crimes committed during the latter half of the
Mikael Baaz: Bringing the Khmer Rouge to Trial 321
1970s, which is well after the Nuremberg trials laid the foundation for
international criminal law but well before the ICTY and the ICTR rapidly
developed during the 1990s. The ECCC has thus given its ambition to respect
the principle of nullum crimen sine lege, to determine the scope of criminal
liability for international crimes between 1975 and 1979 as well as the effect of
a domestic statute of limitations (Ciorciari and Heindel 2014: 50–51).
The chief controversy in the ECCC in regard to international modes of
liability is the possibility of prosecuting the accused with committing crimes by
(active) participation in a common criminal plan, commonly known as “crime
of conspiracy” but today also referred to as the doctrine of “joint criminal
enterprise”. The doctrine is highly controversial and has been much debated in
international criminal law ever since the establishment of the ICTY and ICTR.
The core question in the case of the ECCC is if the crime of joint criminal
enterprise formed a part of customary law or was to be considered as a general
principle of law in the latter half of the 1970s. In answering this question, the
Court replied somewhat ambiguously, arguing that basic and systemic joint
criminal enterprise (also known as joint criminal enterprise 1 and 2,
respectively), but not extended joint criminal enterprise (also known as joint
criminal enterprise 3) should be considered a general principle of law or part of
customary international criminal law at the relevant time. This ruling is quite
interesting since it, at least indirectly, challenges the ICTY judgment in the
Tadic case (Ciorciari and Heindel 2014: 54–56) To further engage in the
fascinating discussion on the doctrine of joint international criminal enterprise,
however, goes beyond the scope of this paper and instead needs be dealt with
elsewhere.
To include domestic offenses in a court’s jurisdiction is often put forward as
one of the key indicators of a hybrid court. On the practical side, the inclusion
of domestic law allows the prosecutors to charge an accused with both
international and domestic offenses, thereby increasing the likelihood of
securing a conviction. On the symbolic and didactic side, including national
legislation makes the trials less foreign and therefore, at least potentially, more
meaningful to the locals – in a way, it contributes to the feeling of ownership
(Ciorciari and Heindel 2014: 57).
The Cambodian Criminal Code from 1956, however, includes a ten-year
statute of limitations for indicting criminalised acts. The ECCC Law therefore
extended the status of limitations by 30 years. This extension has, just as the
discussion on joint criminal enterprise, raised the issue of nullum crimen sine
lege and divided the judges of the ECCC into two camps – one international
and one domestic. In the absence of a supermajority of judges, the most
national of all hybrid courts will, consequently, not be prosecuting any national
crimes. Reaching this conclusion was time consuming and contributed to the
reduction of the symbolic and didactical contributions of the ECCC
proceedings to the Cambodian transitional justice process (Ciorciari and
Heindel 2014: 58–59).
322 Mikael Baaz: Bringing the Khmer Rouge to Trial
5.2.3 The ECCC Internal Rules
According to the ECCC Law, the Court’s procedure should, as we know, be in
accordance with Cambodian Law, with guidance from international procedural
law only where there are gaps in the Cambodian Law, uncertainty in
interpretation or an issue with consistency with international standards. In this
regard, the ECCC has faced even greater challenges than in the case of the
combining of substantive law that is discussed above.
The main issues concerning the rules of procedure are twofold. Firstly,
when the ECCC Law was agreed, Cambodia in fact lacked a comprehensive
criminal procedure code. Such a law – the Criminal Procedure Code of
Cambodia – was not adopted until August 2007. Secondly, the Criminal
Procedure Code, which was drafted by French legal experts, is out-dated and,
according to former International Co-Investigating Judge Marcel Lemonde,
was “obsolete before it was even used” (quoted in Ciorciari and Heindel 2014:
63). In responding to this somewhat awkward situation, the ECCC has chosen
to develop and adopt its own procedural rules.
Even though the judges who adopted the Internal Rules acted without
explicit statutory authority, the Trial Chamber of the ECCC has affirmed that
they, in line with the Pre-Trial Chamber, have primacy over the Criminal
Procedure Code of Cambodia.
The Trial Chamber … agrees with the Pre-Trial Chamber when it noted that …
[t]he Internal Rules … form a self-contained regime of procedural law related to
the unique circumstances of the ECCC, made and agreed upon by the plenary of
the ECCC. They do not stand in opposition to the Code of Criminal Procedure
of the Kingdom of Cambodia (“CPC”) but the focus of the ECCC differs
substantially enough from the normal operation of Cambodian criminal courts
to warrant a specialised system. Therefore, the Internal Rules constitute the
primary instrument to which reference should be made in determining
procedures before the ECCC where there is a difference between the procedures
in the Internal Rules and the CPC (Decision on Noun Chea’s Preliminary
Objection Alleging the Unconstitutional Character of the ECCC Internal Rules,
Dossier No. 002/19-09-2007/ECCC/TC, 8 August 2011).
Former French Civil Party Lead Co-Lawyer Elisabeth Simonneau Fort has
argued that “from a civil law perspective, the Internal Rules are not well
written and lack sufficient detail to be precise” (referred in Ciorciari and
Heindel 2014: 67). Hence, in spite of a long and complicated birth and many
revisions, the Rules leave a lot to be desired. They are characterised by
ignorance, compromises and as a whole, they look like a patchwork.
Michael Karnavas, former Co-lawyer for Ieng Sary (Case 002/01) and Co-
Lawyer for Meas Muth (Case 003), has delivered a telling criticism against the
application of the Internal Rules at the ECCC by saying that: “Whenever it
suits them they just create new rules” rather than looking at what does the
Cambodian rules says; “By judicial fiat they make these decisions. Today
we’re going to apply this; tomorrow we’re going to apply that. Just tell me
what the rules are so I know what to expect and how to proceed” (quoted in
Ciorciari and Heindel 2014: 60).
Mikael Baaz: Bringing the Khmer Rouge to Trial 323
To conclude, over and above the hybrid, complex and inconsistent structure
of the ECCC, and the responsibility to interpret and apply two sets of laws to
events that took place during the latter half of the 1970s, the lack of clear
procedural rules has also contributed to severely compromise the operation,
efficiency and, by extension, legitimacy of the Court.
Yet another problem that the ECCC has to face is in relation to the Court’s
dual funding or, to be more correct, the under-funding of the national side of
the ECCC. This issue will be in focus in the next sub-subsection.
5.2.4 Funding Issues
The expenses and salaries of the Cambodian side of the ECCC are funded by
Cambodia and, to a greater extent, by voluntary contributions by primarily
foreign governments wishing to assist the proceedings.
In spite of the generous support from more than 35 countries, Cambodia has
difficulties of financing the national component of the ECCC and ever since it
was established the Court has faced frequent funding shortages. In 2013,
several national members of staff even went on strike due to unpaid salaries
and today there is still an urgent need for funding in order to continue the work
of the Court (ECCC 2015v; Radio Free Asia, 18 March 2013).
Corell said regarding the funding of international criminal courts when I
spoke to him in January 2015 as follows:
The Security Council did not want another expensive court in Sierra Leone …
But the Agreement between the UN and Sierra Leone should have contained a
clause about assessed contributions … the same applies to the ECCC. Courts
cannot be privately financed, but should be publically financed … otherwise it
will affect their credibility. In retrospect I accuse myself in this regard
(Interview Hans Corell, Skype, January 2015).
One of the many results of the lack of funds is that the didactical important
VSS, which has been underfinanced and understaffed ever since the beginning
and, by consequence, has been forced to struggle hard to fulfil its ambitious as
well as important mandated tasks (Ciorciari and Chy 2009: 234).
According to Michelle Caswell (2010: 40), the voices of the civil parties
have, in spite of the initial promise by the ECCC to break new ground, largely
been omitted. In fact, civil parties have occasionally boycotted the proceedings
in protest of the Court’s decision that the civil party lawyers were not permitted
to question the accused.
Contributing to this rather disappointing picture is some of the negative
comments that I received when I interviewed victims and others who in one
way or another had personal experiences from the ECCC proceedings. One
victim, for example, seeking to share her memories about gender-based
violence during the trial, was very negative about how the Court had met her
and her story; she said: “The ECCC just cares about the violence and homicide,
not about gender-based violence” (Interview, victim, Phnom Penh, July 2010).
Yet another respondent, a civil society representative working with victims and
civil parties, summarised his ECCC experience in the following way: “The
324 Mikael Baaz: Bringing the Khmer Rouge to Trial
ECCC is about Vietnamese-supported Khmer Rouge punishing Chinese-
supported Khmer Rouge” (Interview, civil society representative, Phnom Penh,
July 2010).
When speaking about funding issues, it should also be mentioned that
serious allegations regarding not only corruption but also other irregularities
have been directed against the ECCC ever since the very establishment of the
Court, including an extensive kick-back scheme, meaning that Cambodian
ECCC officials, judges included, had to pay 30 per cent of their salaries to
government officials so that they could keep their positions (see further e.g.
Barton 2007; Doung and Ear 2009; Hamilton and Ramsden 2014: 129–132;
International Bar Association 2011; International Bar Association 2012).
Together, the financial problems and the allegations of corruption, needless to
say, does not contribute to the efficiency and legitimacy of the ECCC.
And, as if the birth of the ECCC and the following structural, technical,
practical, didactical and economic problems raised above were not enough, the
Court has also continued to be plagued by continued political interference, not
only from the RGC but also, to some extent, donor countries that have
communicated certain views on the Court as well the proceedings.
5.3 The ECCC – Continued Political Interference
Analytically it is useful, as suggested by Thomas Hamilton and Michael
Ramsden (2014), to separate at least two distinct but overlapping categories of
political interference.
In the first category, at one extreme, political forces affect the whole picture of
an international tribunal’s operation – the legal project is fundamentally
political at its core – and so political interests are determinative of the creation
of the court, the establishment of its jurisdiction, and the drafting of
foundational texts. The working parameters of the tribunal are set even before
the “show has begun”, such that any subsequent attempts of achieving
“legality” and independence from political motives are overridden by the fact
that the tribunal was formed with fundamentally political aims in mind. The
second category describes those types of political interference that arise during
proceedings of the tribunal, from political forces acting on the legal process as it
operates (p. 199-120).
Above, the first category of political interference has been discussed. The other
category – the one acting on the legal process as it operates – will be discussed
below.
Supporters of the Court had great hopes that the ECCC Agreement would
give the UN enough leverage to keep the Court on track. Underlying this hope
was the expectation that the UN would continue to actively safeguard the
ECCC’s observance of international legal standards. These hopes were,
however, dashed rather quickly for various reasons.
As we have seen earlier in this paper, the negotiations between the RGC and
the UN turned out, on an overall level, as a qualified victory for Hun Sen and
the CPP. The RGC’s influence over the ECCC is, however, not simply a
Mikael Baaz: Bringing the Khmer Rouge to Trial 325
question of numbers. It also relates to the general lack of judicial independence
in Cambodia.
In a survey of the Cambodian legal system presented in 2009, Khean Un
concludes that the Cambodian judiciary is “weak, dependent and corrupt”.
“The problems within the judicial sector”, he continues:
… are a product of the broader social, political and economic environment of
post-conflict Cambodia; i.e. extended clientelism and elites’ half-hearted
commitment to democracy --- In many ways, the judiciary is a tool of the ruling
party/parties to legitimize their actions and strengthen the executive power at
the expense of the principles of checks and balances (Un 2009: 95; cf. Baaz and
Lilja 2014).
Senior judicial appointments have and still are commonly driven by personal
connections in Cambodia, including at the ECCC. The closeness between the
RGC and senior Cambodian staff makes the Court vulnerable to political
interference. All high-level Cambodian personnel at the ECCC continue to
hold important positions in the national judicial system or the RGC itself,
sometimes both, and their tenure is dependent on their loyalty to the regime.
The very structure of the Cambodian legal system thus makes sure that judicial
independence and professionalism cannot be obtained in practice (Ciorciari and
Heindel 2014: 37; Doung and Ear 2009).
During the investigative phase of Case 002, the closeness between the
Cambodian staff and the RGC became evident in the ECCC’s inability or
unwillingness to call certain Cambodian officials – including Sihanouk, the
former king of Cambodia, as well as high-level Cambodian governmental
officials, most notably the current Prime Minister Hun Sen, the Senate
President Chea Sim and the NA President Heng Samrin – to testify at the
Court. The RGC resisted and the national judges supported them without
reservations (Ciorciari and Heindel 2014: 146; Hamilton and Ramsden 2014:
127). These individuals, given the fact that they have been politically active
since at least 1975, would beyond doubt have a lot to contribute to the ECCC
proceedings; not at least regarding the important goal of educating Cambodia’s
youth for the future.
The problem of political interference became even more evident in 2008,
when the international Co-Prosecutor finally decided to initiate two more
cases: Case 003 and Case 004. Due to disagreement with the national
prosecutor in this regards, Robert Petit filed a disagreement between the two
Co-Prosecutors and asked the Pre-Trial Chamber to resolve the dispute, which
they eventually did. After almost a year, the Pre-Trial Chamber decided that no
further investigations should be carried out – the three Cambodian judges voted
against the investigations, while the two international judges voted in favour of
further investigations. Most independent observers believe that the national
Co-Prosecutor and the Cambodian judges in the Pre-Trial Chamber did not act
impartially, but instead followed the publically expressed will of the RGC,
which has frequently opposed investigations beyond Case 002 (Ciorciari and
Heindel 2014: 176–177; DeFalco 2014: 2). Already in the autumn of 2001,
Prime Minister Hun Sen, for example, informed Ban Ki-moon when the UN
326 Mikael Baaz: Bringing the Khmer Rouge to Trial
Secretary General was visiting Phnom Penh, that “Case 003 will not be
allowed … [t]he court will try the four senior leaders successfully and then
finish with Case 002” (Hun Sen quoted in Open Society 2012: 2).
In spite of the fundamental disagreement, the international Co-Prosecutor
decided to carry on with the cases and open judicial investigations by sending
introductory submissions to the Co-Investigating Judges. The Cambodian Co-
Investigating Judge, You Bunleng, has refused to assist his international
counterpart in the investigations. Despite this refusal, the International Co-
Investigating Judge Mark Hammond has been able to charge several
individuals recently, including Meas Muth (former commander of the navy
and, most likely, a member of the Central Committee of the CPK or the
Assisting Committee of the Central Committee), Im Chaem (among other
things, former Secretary of the Preah Net Preah District) and Ao An (former
Deputy Secretary in the Central Zone of DK), in the two long-time pending
cases (Ciorciari and Heindel 2014: 176–177; ECCC 2015w; ECCC 2015x;
ECCC 2015y). To further discuss this very recent and interesting development
in the ECCC, however, lies beyond the scope of this paper and should instead
be dealt with elsewhere. It is the long and difficult process that eventually led
to charges that is interesting for now, since it clearly illustrates the problem
with political interference acting on the ECCC process as it operates.
As displayed in this paper, the RGC has never wholeheartedly supported the
ECCC; if so, it has only been for strategic reasons. It is, however, not only the
RGC who has dubious and vested interests in the ECCC or tried to interfere –
so have various individual foreign states as well as the UN. At an early stage,
China opposed the Court due to its close ties to the Pol Potists. Other states
like, for example, Australia, France and Japan, have, due to (political and
economic) interests beyond the ECCC, refrained from criticising the RGC and
instead have provided funds in critical situations when other sources of funding
have been cut due to political interference (Ciorciari and Heindel 2014: 197).
Being unhappy with the outcome of the negotiations with the RGC, the UN
has, contrary to what several supporters of the Court hoped, been quite
unwilling to take part in the ownership and leadership of the ECCC, which
restricts its engagement to rather limited, technical issues. This is a problem
since, using the words of Ciorciari and Heindel (2014: 10), the greatest in-built
weakness of the ECCC is ultimately “that the United Nations has too much
involvement to escape responsibility but too little authority to run it”.
Former ECCC investigator and scholar Craig Etcheson has given another
comprehensive and telling overall review of the Court. Reflecting upon the
Court in October 2012, he said: “to a pretty large extent, this deal was about as
good as could be had under the circumstances” (quoted in Ciorciari and
Heindel 2014: 40).
6 The ECCC – As Good as could be had?
Sometimes it is argued that everything is about expectations. If you have high
expectations then you are doomed to be disappointed; whereas the way to be
pleased or happily surprised is to keep the expectations low or to not have any
Mikael Baaz: Bringing the Khmer Rouge to Trial 327
at all. The expectations on the ECCC are arguably high. It is believed that not
only will the Court deliver justice to a traumatised population, but it will also
provide a historical account of a dark chapter in Cambodia’s history,
strengthen the rule of law and serve as an example for people who disobey the
law in Cambodia as well as cruel regimes worldwide. Not only is the agenda
ambitious, the various goals are also difficult, if not impossible, to reconcile.
Speaking to several senior staff members over the years confirms this position.
Some of the ECCC staff argued that beyond providing justice, the other goals
of the Court is not possible to achieve and to believe so is naïve. The ECCC is
about providing justice – nothing more, nothing less.
The questions that remain to be answered, after having lowered the
expectations accordingly are, on the one hand, if the ECCC is as good as could
be had under the circumstances and if the Court operates as good as it possibly
can given the result of the negotiations and, on the other hand, what lessons
can be learned from the ECCC and to what extent the Court should serve as a
role model for future hybrid courts. These questions will guide this concluding
section of the paper.
As displayed in detail above, the trial procedures turned out to be
experiental, complex, complicated and at times contradictory, mainly due to
several compromises during the negotiations for the ECCC. Simply put, too
many concerns have been taken into consideration in the construction of the
Court. Among other things, the ECCC structure secures investigatory power to
both the Prosecutors and the Investigating Judges. This, in itself serious
problem, is, however, not the main structural problem of the ECCC. According
to Corell: “The [Court’s main structural] problem isn’t the investigating judge
or prosecutor; it’s the ‘cos’” (quoted in Ciorciari and Heindel 2014: 187).
The chief idea behind the ECCC’s unique design, with not only national and
international Judges but also national and international Co-Prosecutors, was in
order to allow for Cambodian ownership of the Court and, at the same time, to
protect it from Cambodian political interference as well as making sure that the
proceedings complied with international legal procedural standards. In contrast
to these, by all means worthy goals, it appears as if the UN and the RGC have
together constructed a “Rube Goldberg-like apparatus that at times seems
designed to ensure that few of the aging accused will live until judgement”
(Ciorciari and Heindel 2014: 44).
The ECCC is, however, not simply blending international and domestic
aspects of law, but also several features from the civil law, common law and, to
a certain extent, socialist law systems. This blend, which, in theory, could have
been effective in several regards, due to the combining of the best from
different worlds, has, however, in the case of the ECCC been combined in a
haphazardly way that has created a process that ends up being the worst of
different worlds and which is best described as simply “schizophrenic”. More
than anywhere else, this is reflected in the ECCC Internal Rules, which, as we
know, have been revised no less than nine times since 2007.
Michiel Pestman, former counsel for Noun Chea, has argued that the
blending of legal systems, in combination with inconsistent rule application,
has led to a troubling unpredictability in the ECCC. By the same token, his
colleague Karnavas have described the trial process as “chaotic” and argued
328 Mikael Baaz: Bringing the Khmer Rouge to Trial
that the Court is “… trying to have it every which way: it’s the French system,
it’s not the French system, it’s the national system, it’s the ICTY. Whenever it
suits them they are constantly changing the rules as the game is being played”.
Civil Party Lead Co-Lawyer Simonneau Fort has said that the ECCC swerves
between “some civil law, some common law, and then some civil law again”
(all referred or quoted in Ciorciari and Heindel 2014: 187).
Khieu Samphan’s defence counsel, Anta Guisse, however, has argued that
the reason why the rules are constantly changing has less to do with the mix of
laws and systems and more to do with the judges, who, she claims, lack
experience working in other international jurisdictions (quoted in Ciorciari and
Heindel 2014: 187). Irrespective of the underlying reasons, the problem with
the seemingly random mix between various legal systems and/or ignorance
represents a serious threat for the ECCC to “deliver justice efficiently while
observing fair trial norms” as well as “attempting to develop a narrative that
addresses the need and demands of survivors” (Ciorciari and Heindel 2014:
187).
Writing about hybrid courts in general, Rupert Skilbeck (2010: 452)
concludes as follows:
For many, the current process of incorporating elements of the two systems is a
pragmatic attempt to build a new hybrid international criminal justice, one that
seeks to take the best of both worlds. But there is a risk that by adopting a ‘pick
and mix’ approach, international courts and tribunals end up with a system that
contains none of the checks and balances that bring order to a national system,
instead ending up with a Frankenstein’s monster that fails to adequately protect
the rights of the defence (italics added).
When applied to the ECCC, this characterisation seems to hits the nail on the
head.
In addition to the above, the Court has also demonstrated a well
documented, both narrowly defined and disappointingly simplistic, approach to
all sorts of relevant historical circumstances. In June 2011, for example, Nil
Nonn, President of the Trial Chamber issued a Memorandum informing all
parties that:
Background contextual issues and events outside the temporal jurisdiction of
the ECCC will be considered by the Chamber only when demonstrably relevant
to matters within the ECCC’s jurisdiction and the scope of the trial as
determined by the Chamber (quoted Ciorciari and Heindel 2014: 165).
By this, I will argue that the avenues to widen the historical discussion in
necessary ways have effectively been cut off, in spite of the fact – as argued by
Son Arun, Noun Chea’s Cambodian counsel – that “[o]ne needs a full picture
of these facts in order to properly asses the acts and intentions of the DK
leaders when they came to power” (quoted Ciorciari and Heindel 2014: 165).
The Trial Chamber’s decisions about what to allow in the courtroom define the
ground of the legal arguments (Mamo 2013: 21). The ECCC has chosen to
define this ground as narrow – too narrow, given the complexity of the cases
addressed – and by this, among other things, limited to allowing for the room
Mikael Baaz: Bringing the Khmer Rouge to Trial 329
to manoeuvre for the accused and their counsels in ways that are hardly
compatible with the standards associated with fair and just trials.
By various limitations, such as the one established by Nil Nonn, the trials in
the ECCC are in fact facing the previously discussed danger of becoming
turned into show trials. As put forward by Andrew Mamo (2013: 22):
… the court is weakened by its simplistic treatment of history and by its refusal
to engage with factors that mark its unique context. The façade that this is an
ordinary court, in which the internal legal mechanisms can be treated with
minimal reference to the external concerns about truth justice, and Cambodian
society, undermines its objectivity. The situation calls for a frank
acknowledgement of the context, of what makes these chambers
“extraordinary” (Italics added).
The price for “purity by limitation” does, however, not come cheap.
Koskenniemi’s words – “In order for the trial to be legitimate, the accused
must be entitled to speak” (2011: 197) – seem more relevant than ever before.
Not only has the ECCC failed to adequately protect the rights of the
defence, it has also, Caswell (2010: 40) argues, largely omitted the voices of
the civil parties, in spite of initial promises by the Court to break new ground.
According to Youk Chhang, the Executive Director of DC-Cam and a KR
survivor, the ECCC’s treatment of civil parties has led to victims being further
traumatised. “The ECCC has”, he writes, “conducted a legal experiment at the
victim’s expense (quoted in Caswell 2010: 40, italics added). This treatment,
including dismissal and silencing of victims, could partly be explained by
practical concerns. In Case 002 the number of civil parties reached almost
4,000. Practical concerns, including the problem of underfunding, however, do
not explain everything in this regard. More damning for the Court is different
conscious and unconscious attempts to try to silence stories that are judged not
to fit into the narrative that is in-the-making. By silencing certain aspects, the
possibilities of adequately addressing the needs and demands of the victims are
reduced (cf. Baaz and Lilja 2015a). All in all, it seems that the ECCC is
primarily not about delivering justice while observing fair trials, nor to develop
a narrative that addresses the need and demands of the victims or to function a
site for various speech act by the victims and witnesses, but rather for
something entirely different.
Not only is the design of the ECCC determined by various political
interests, national as well as international, but the Court has also continued to
be plagued by political interference by various forces, national as well as
international, after the show has begun. The incidents in this regard are
numerous. The opinion of Pestman summarises the problem of political
interference elegantly, he has said that everyone working at the Court is aware
of political interference and that it taints every aspect of the ECCC’s work. He
concludes as follow: “The Trial Chamber international judges have never
dissented on any ruling. They must be afraid everything collapse if they point
out problems” (quoted in Ciorciari and Heindel 2014: 189).
By this, we will return to the question of whether the ECCC is as good as
could be had under the circumstances. In spite of what has been put forward
330 Mikael Baaz: Bringing the Khmer Rouge to Trial
above, I think it is. Considering the fact that the UN team was “forced” back to
the negotiating table in December 2002 with the explicit task of concluding an
agreement with Hun Sen to make the ECCC becoming a reality, the UN
negotiators did what was possible and they negotiated skilfully, even though
their hands were tied in many respects.5 Regardless of this, as argued by
former Co-Prosecutor Petit: “In the end, the victims of the Khmer Rouge got
the tribunal that Hun Sen and his allies, including other former Khmer Rouge
throughout the regime, wanted” (Petit quoted in Ciorciari and Heindel 2014:
39).
The participation of the UN was intended to make sure that the ECCC
would meet international standards. At the same time, however, the Court was
also designed to limit the scope of UN actions. The spilt authority of the Court
between international and Cambodian leadership makes the ECCC vulnerable
to political interference from the RGC. Given the structure of the ECCC, this
problem is difficult for the UN to address. The structural barriers are, however,
compounded by the fact that the UN have, for various reasons and since the
outset, been unwilling to do what they actually can to take influence and
control over a legal construction, which they pushed hard to establish. All in
all, the UN has interpreted its mandate in a narrow way and has acted more like
a technical assistance and less like a founding partner. The UN’s ambivalence
has turned into passivity and has made the process stagnate and controlled by
the RGC (Ciorciari and Heindel 2014: 201).
On the whole, the ECCC was structured in an unfortunate way. This is,
however, not sufficient when seeking to understand the Court’s poor
performance today; other factors need to be taken into consideration. The main
5 Since the RGC and the UN in many respects stood far apart, the negotiations to establish
the ECCC were very difficult. The difficulties are clearly illustrated by Article 2 of the
ECCC Agreement, in particular paragraphs 2 and 3; they read as follows:
2. The present Agreement shall be implemented in Cambodia through the Law on the
Establishment of the Extraordinary Chambers as adopted and amended. The Vienna
Convention on the Law of Treaties, and in particular its Articles 26 and 27, applies to
the Agreement.
3. In case amendments to the Law on the Establishment of the Extraordinary Chambers
are deemed necessary, such amendments shall always be preceded by consultations
between the parties.
Corell wrote to me in this regard as follows:
This I absolutely unique! I have never experienced to include such provisions in an
international agreement before. It is assumed that the parties should respect those
absolutely fundamental rules of international treaty law ... The reason I insisted to have
those paragraphs included was that my counterpart claimed that it would be their
national law that should be determining. I therefore wanted that the Agreement
expressly stated that this is not the case, but that it is the Agreement that is determining
and that the [national] law must be in conformity with the Agreement. It was yet another
attempt from my side to bring about a somewhat fairly acceptable result” (e-mail from
Hans Corell to the author of the paper, 28 May 2015, emphasis in original, author’s
translation from Swedish to English).
Mikael Baaz: Bringing the Khmer Rouge to Trial 331
one is political interference: too little from the UN and too much from the
RGC. Hence, Hun Sen and the CPP have got a legal site in which they can
perform “politics by other means”, more-or-less undisturbed, due to the UN’s
relatively low level of commitment (McCargo 2011: 613).
As it currently stands, the ECCC is not able to effectively bring the KR to
justice, since the judiciary lacks impartiality and adequate competence, which
is clearly illustrated by, among other things, recurring political influence,
technical errors and well-supported allegations of corruption (Caswell 2010:
41). In fact, the trails permit Hun Sen to blame many of the problems in current
Cambodia upon a small number of old, sick and dying ex-Maoists, thereby
redirecting the focus from the current administration’s responsibilities, their
failings and abuses (McCargo 2011: 626).
Taking into consideration that the ECCC is not only about bringing a few
KR leaders to justice, but also for elements of the international legal
community, a site where emerging principles of global justice could be
explored, validated and normalised, the above is particularly serious (cf.
McCargo 2011: 626). What is currently taking place in the ECCC does not
only benefits the RGC it also, which perhaps is more serious, harms the
legitimacy of the UN, the idea of TJ and the future of ICL (cf. Baaz 2015a).
From this follows that the UN should not have borrowed itself to the legal
farce that is currently being played out in the outskirts of Phnom Penh. This
was pretty clear for several observers already when Corell and his team were
forced back to the negotiating table in December 2002. If not then, it has amply
been demonstrated after the beginning of Case 002/01 in 2008.
David Scheffer, one of the architects behind the ECCC, has admitted that
“there is no question that the ECCC was an experiment, but one for which there
really was no viable alternatives after years of negotiations” (quoted in
Ciorciari and Heindel 2014: 262, italics added). Less positive, when asked
about what he thought of the legal construction which he was “forced” to
negotiate on behalf of the UN, Corell said in January 2015:
I warned for this construction … Hun Sen changed the entire concept … What
we were discussing was completely unmanageable … it would be a terrible
bureaucracy … Never ever should this design form a model for other courts …
This sort of thing simply should not be allowed (Interview, Hans Corell, Skype,
January 2015).
Even more critical and straightforward than Corell is scholar Peter Maguire,
who has argued that the UN, by realising the ECCC, in fact entered into a
“Faustian” arrangement and that the mixed court model should be relegated “to
the dust bin of history” (quoted in Ciorciari and Heindel 2014: 9).
Considering the criticism put forward in this paper, what lessons can then be
learned from studying the ECCC? One important lesson for the future TJ
project is that ICL has quite severe limitations and can only, if at all, contribute
to move beyond national traumas in a limited way. Put differently, ICL is no
silver bullet in TJ, not in general and certainly not in the Cambodian case.
Another important lesson from the Cambodian experiment is the obvious
limitations of – even though the “the blending of law is part of ‘a move
332 Mikael Baaz: Bringing the Khmer Rouge to Trial
towards a homogenous system at the international level involving procedures
from both traditions to ensure they fit the realities on the’” (Cartwright quoted
in Ciorciari and Heindel 2014: 113) – mixing legal systems. Put
straightforwardly, civil law and common law does not blend as easily in
practice as they appear to do in theory.
All things considered, the ECCC – and the way the Court operates and does
not operate currently – illustrates many technical problems associated with
modern ICL. All this is indeed interesting and much could be learnt for the
future by focusing on these issues. But we cannot stop there; more fundamental
questions about ICL and the ECCC also need to be addressed; questions that
substantively engage with various blind spots and complicities, questions about
imperialism, power, ideology, struggle over memory, exclusion, injustice,
conflict and resistance, just to give a few examples (cf. Baaz 2015b; Baaz and
Lilja 2015a; Baaz and Lilja 2015b). If the ECCC is scrutinized in this deeper
sense, then there is even more to be learnt for the future than commonly
acknowledged; lessons that could contribute to the development of a field of
ICL that is less self-congratulatory, over-confident and uncritical than it is
today.
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