London School of Economics Conference
on
Decades of State-sponsored Destruction
of
Myanmars Rohingya
28 April 2014
Cambodia's Khmer Rouge Tribunal: one model for a
combined national and international judicial mechanism
Presentation by Dr Helen Jarvis, Former Chief of Public Affairs and of
the Victims Support Section of the ECCC
The final quarter of the 20
th
century witnessed enormous changes in the international
political landscape with the ending of the Cold War and the collapse of the Soviet
Union. Alongside this political realignment, a new cloth of international
humanitarian and criminal law and justice began to be woven cloth whose warp
and weft are still being changed, and whose colour is by no means permanently
fixed.
One thread among many in this new cloth was the establishment of the
Extraordinary Chambers in the Courts of Cambodia (ECCC) in February 2006,
following many years of failed attempts to achieve justice, geopolitical manoeuvring
and tortuous and difficult international negotiations.
1
Against this background of emerging possibilities for international justice and
domestically amid the final stages of the disintegration of the Khmer Rouge in June
1997, the Cambodian government requested the United Nations to provide assistance
in finally holding accountable the top Khmer Rouge leaders who had masterminded
massive human rights violations some twenty years before.
During a period of 3 years, 8 months and 20 days (from 17 April 1975 to 6 January
1979), under the rule of the Khmer Rouge known as Democratic Kampuchea (DK), at
least 1.7 million Cambodians perished, a quarter of the population dying, in
miserable circumstances of starvation, overwork and untreated illness or from brutal
torture or execution in what is in Cambodia generally referred to the genocidal
regime.
2
1
For interpretations of this extenuated process, see Fawthrop, Tom and Helen Jarvis,
Getting away with genocide: elusive justice and the Khmer Rouge tribunal, Pluto Press,
London and Ann Arbor, 2004; and Scheffer, David. All the missing souls: a personal
history of the war crimes tribunals, Princeton University Press, Princeton and Oxford,
2012, Chapter 12 The toughest cockfight, pp.341-405.
2
Kiernan, Ben. The Pol Pot regime: race, power and genocide in Cambodia under the Khmer
Rouge, 1975-1979, Yale University Press, New Haven, 1996; ECCC, Office of the Co-
2
Despite this generalized suffering and privation of the entire population, some
groups were singled out for particular persecution. Certain ethnic groups suffered
more intensely. The most extreme example was the estimated 450,000 Vietnamese
who lived in Cambodia before the civil war. While most were driven out or
massacred in 1970 under the Lon Nol government, or expelled in early 1975 as the
Khmer Rouge (KR) came to power, virtually none of the estimated remaining 20,000
survived the Khmer Rouge period, leading historian Ben Kiernan to report 100
percent elimination of the Vietnamese minority.
Kiernan also reported the following figures for the death rate of other minorities
during the KR regime: Chinese (50 percent); Khmer Krom (downstream Khmer
originating in southern Vietnam), Thai and Lao (40 percent); and Cambodias
significant Muslim community, the Cham, of whom 36 percent are estimated to have
perished.
It was the Cham Muslim community that put up the most serious resistance to the
Khmer Rouges genocidal project.
3
Even though this failed to halt their dispersal and
persecution (including banning use of their language, customary dress, food and
religious practices) many of the survivors have now returned to their homeland and
rebuilt that community.
City people were also singled out for persecution not only senior officials and
military from the former regime, the elite and professionals but also the urban petty
bourgeoisie and even workers. Some 35 percent of the population of the capital city
of Phnom Penh on 17 April 1975 did not survive, compared to an 8 percent loss from
the remote and rural northeastern provinces.
Although this was one of the largest and most egregious crimes of the 20
th
century,
whose scale had been revealed following the overthrow of the Khmer Rouge in 1979,
a generation went by until in July 2006 the judges of the Extraordinary Chambers in
the Courts of Cambodia (ECCC) were sworn in.
The long process of seeking justice for the Khmer Rouge crimes
Within days of the ouster of the Khmer Rouge regime, evidence of systematic crimes
against humanity was uncovered. Two Vietnamese photographers stumbled on S-21
or Tuol Sleng, the name of the former high school in Phnom Penh, where more than
15,000 people were imprisoned and tortured before being executed on the outskirts
of the city at Choeung Ek.
4
Investigating Judges, Closing Order [in Case 002], Chapter XIII, Crimes Against
Humanity, 15 September 2010 (D427).
3
The Cham rebellion
4
Chandler, David. Voices from S-21: terror and history in Pol Pots secret prison.
Silkworm Books, Chiang Mai, 2000; and Panh, Rithy. S21: the Khmer Rouge killing
machine. Film, 2003. The photographic and documentary archives of Tuol Sleng
Genocide Museum were inscribed on UNESCOs Memory of the World
International Register in 2009. Details of the collection can be found at
3
But Tuol Sleng was only one such site mass graves and prisons have been found in
every province, showing that the same horror had been meted out throughout the
country in a widespread and systematic manner.
5
Tuol Sleng and other sites were shown to international journalists and visitors.
Numerous survivors accounts and journalists written and filmed reports gave a
picture of what had occurred, but unfortunately western governments paid scant
attention to human rights and issues of justice.
In 1979 a 6-3 majority at the UN's credentials committee accepted the DK as the
legitimate representative of the Cambodian people, endorsed in the UN General
Assembly and thus preserving the seating of the toppled murderous regime,
unbelievably for more than a decade, even after their crimes were widely known and
documented.
The opposition to the new government in Cambodia, the People's Republic of
Kampuchea (PRK) was ostensibly because Vietnam had invaded a smaller neighbour
(albeit to overthrow a murderous regime, and to respond to thousands of
unprovoked attacks on Vietnams territory and population). But similar outrage and
denial of United Nations recognition were not forthcoming in four other
contemporary cases of external intervention (Uganda, when Idi Amin was
overthrown largely by Tanzanian forces in 1978-79; Central African Empire, by
France in 1979; Grenada, by the United States in 1983 and Panama by the United
States in 1989), not to mention East Timor (although its integration into Indonesia
was never officially recognized by the United Nations, nothing was done to end it
until the people themselves forced a solution in 1999).
6
The Khmer Rouge continued to hold the Cambodian seat in the UN until 1991, and
the Cambodian genocide was erased from the UN agenda for nearly two decades
until the General Assembly in 1997 formally recognised it for the first time.
As it was struggling to rebuild the country from what was accurately described as
Year Zero, the fledgling government of the PRK invested significant scarce
resources to document the crimes committed by the Khmer Rouge, and to bring
international jurists and observers to Phnom Penh to participate in the People's
Revolutionary Tribunal. They were convinced that once the world understood the
http://www.unesco.org/new/en/communication-and-information/flagship-
project-activities/memory-of-the-world/register/full-list-of-registered-
heritage/registered-heritage-page-8/tuol-sleng-genocide-museum-
archives/#c188357
5
From 1995 to 2004 Yale Universitys Cambodian Genocide Program and the
Documentation Center of Cambodia recorded 388 burial sites, 196 prisons and 81
memorials. http://www.d.dccam.org/Projects/Maps/Mapping.htm
6
Amer, Ramses. The General Assembly and the Kampuchean issue: intervention, regime
recognition and the world community, 1979-1987. Department of Peace and Conflict
Research, Uppsala University, Uppsala, 1989.
4
barbarities of life under the Khmer Rouge, the international community could hardly
fail to be more sympathetic to the new government in Phnom Penh.
The People's Revolutionary Tribunal -- the trial of the Pol Pot Ieng Sary clique on
the charge of genocide -- was held in Phnom Penh August 1979. Predictably, the
defendants were convicted, but the expected moral and diplomatic benefits did not
flow to the PRK, and instead it was widely denounced internationally for staging a
show trial.
Despite its undoubted weaknesses, the tribunal should not have been merely
dismissed as propaganda show. The witnesses called by the prosecution provided
crucial and authentic testimony against the Khmer Rouge regime, which deserved to
be scrutinised seriously by international jurists and the outside world.
7
Instead of being ostracized, DK continued to be given international recognition, VIP
hospitality and sanctuary and military rebuilding in Thailand, in spite of genocide
convictions for a crime that had been outlawed under an International Convention
since 1948.
In the late 1980s, as the Soviet Union collapsed, leading to a withdrawal of crucial
economic and political support for the PRK, and after a military and political
stalemate inside Cambodia left all sides weakened, in 1987 the first moves towards
peace talks were held. The PRK then announced a policy of national reconciliation
with all parties except Pol Pot and the top Khmer Rouge leaders. This policy was
implemented through a series of unilateral actions -- in 1988 an offer to accept
Sihanouk as head of state, and in 1989 a profound change of constitutional status
from the People's Republic of Kampuchea to the State of Cambodia (flag, religion,
economy etc). Vietnam continued its unilateral withdrawal of its advisers and troops,
which had begun in small measure even as far back as 1982, with the final contingent
leaving Cambodia in September 1989.
Deadlock was reached in the negotiations on the future role of the Khmer Rouge and
the use of the term genocide in describing Democratic Kampuchea. After months
of wrangling, Cambodian prime minister Hun Sen under enormous international
pressure finally abandoned all attempts to include references to the genocide in the
draft peace treaty.
8
On 23 October 1991 the Paris Peace Agreements were signed, formally guaranteeing
international political support for an arrangement that included the Khmer Rouge as
legitimate political actors and part of the Supreme National Council, mandated to
exercise sovereignty over Cambodia during a transitional period to elections, during
which time the United Nations would play a major political, administrative and
7
Fawthrop and Jarvis, op cit, Chapter 3 The worlds first genocide trial, pp. 40-51.
8
Fawthrop and Jarvis, op cit, Chapter 5 Challenging the history of forgetting and
Chapter 6 Peace without justice, pp. 70-107.
5
military role.
9
Some 22,000 officials and soldiers arrived in Cambodia in an exercise
that cost some US$3 billion and was the first of what has become a continuing series
of large-scale deployment of international forces wearing blue berets.
10
The Paris Peace Agreement had laid the ground for what followed. In the name of
reconciliation, all references to genocide had been masked in euphemisms, such as
the agreement to the non-return to the policies and practices of the recent past.
The Khmer Rouge refused to implement a single one of the pledges it had signed in
Paris, and instead continued to terrorise and intimidate people in many parts of the
country, including perpetrating a number of atrocities against people of ethnic
Vietnamese origin. The long standing anti-Vietnamese tone of the Coalition
Government of Democratic Kampuchea (its principal glue) was transferred into
action within the borders of Cambodia itself.
After the 1993 elections, the Cambodian government launched a strategy to break up
the Khmer Rouge. Known as DIFID (Divide, Isolate, Finish, Integrate, Develop), it
involved military, political and economic tactics -- military assaults, outlawing the
Khmer Rouge, wooing defectors, and repeatedly raising the prospect of a justice
being done through the setting up of a new tribunal.
The Khmer Rouge started fracturing and so did the coalition government. As almost
their last common act, the Co-Prime Ministers (Hun Sen and Norodom Ranariddh)
on 27 June 1997 signed a joint letter to UN Secretary-General Kofi Annan requesting
international assistance to bring the Khmer Rouge to trial.
11
United Nations acknowledgment
Finally, in December 1997, almost 19 years after the Khmer Rouge was overthrown,
for the first time a major organ of the United Nations acknowledged that massive
human rights violations, including acts of genocide and crimes against humanity,
had occurred in Cambodia, and the General Assembly voted to respond positively to
the July 1997 letter signed jointly by the then Co-Prime Ministers Hun Sen and
Norodom Ranariddh requesting assistance in bringing the Khmer Rouge to justice.
12
Following the passage of the resolution by the General Assembly, the Secretary-
General established a Group of Experts to give an opinion as to whether sufficient
grounds existed for a trial, and to explore the advantages and disadvantages of
various types of tribunals, with different levels of international involvement.
9
The full text of the Paris Peace Agreements can be found at
http://www.un.org/en/peacekeeping/missions/past/untacbackgr2.html
10
Findlay, Trevor. Cambodia: the lessons and legacy of UNTAC. Oxford University
Press, Oxford, 1995; and Widyono, Benny. Dancing in shadows: Sihanouk, the Khmer
Rouge, and the United Nations in Cambodia. Rowman & Littlefield, Lanham, Maryland,
2008.
11
Cited in United Nations. Report of the Group of Experts for Cambodia established
pursuant to General Assembly resolution 52/135, para. 5.
12
United Nations. General Assembly Resolution 53/850.
6
The Group of Experts determined prima facie that both international and national
crimes of a serious nature had been committed; that evidence and witnesses could be
presented to support prosecution of these crimes; and that at least some potential
suspects survived and could be brought to trial. They then went on to canvass
various options truth and reconciliation commission, international tribunal or
domestic trials.
The Group of Experts advocated an international tribunal such as those already in
operation for Rwanda and the former Yugoslavia, dismissing both a domestic
process and even the novel concept of a mixed tribunal, on the grounds of distrust of
Cambodian legal system. They went even further, insisting even that the tribunal be
located outside Cambodia.
13
In Cambodia and in the court of international opinion these options were argued, not
only during the time that the Group of Experts were preparing their report, but for
long afterwards, right up until the establishment of the Khmer Rouge tribunal and
even throughout its lifetime, with many critics claiming that the model proposed by
the Group of Experts, or perhaps a truth and reconciliation commission, or even no
formal process at all, would have been better models for Cambodia than the model
eventually adopted -- a domestic court with international participation and
assistance.
Vigorous debates continued and many NGOs maintained that national reconciliation
and healing of psychological damage would be better served without such a judicial
process, while others maintained the view articulated in the slogan No peace
without justice.
In any event, the Group of Experts recommendation for an international tribunal
met with a sharp rejection from the Cambodian government, which reiterated its
request for international assistance for and involvement in a Cambodian domestic
process.
14
The end of the Khmer Rouge
Running parallel to these discussions between the Cambodian government and the
UN on the nature of a future trial was the culmination of Hun Sens DIFID strategy
and the ending of the Khmer Rouge as a political and military organisation. The
Khmer Rouge was virtually brought to an end as a political and military force in the
closing days of 1998. After two decades of many countries obstructing efforts to bring
the Khmer Rouge to justice, the tide was decisively turning towards the setting up of
a tribunal.
15
The Law and Agreement on Establishment of the ECCC
13
United Nations. Report of the Group of Experts for Cambodia established pursuant
to General Assembly Resolution 52/135 (UN Document A/53/850 and S/1999/231).
14
Fawthrop and Jarvis, op cit, Chapter 7 Waking up to genocide, pp. 113-133.
15
Ibid, Chapter 9, Uneasy partners, pp.155-188.
7
In August 1999 the United Nations sent a high-level delegation from its Office of
Legal Affairs to embark on formal negotiations with the Cambodian government,
which had established its own Task Force as a counterpart. On 2 January 2001, just
before the twenty-second anniversary of the ousting of the Khmer Rouge from
Phnom Penh, the National Assembly unanimously approved a draft law to establish
extraordinary chambers in the courts of Cambodia to bring to trial senior leaders of
Democratic Kampuchea and those responsible for serious violations of Cambodian
criminal law and international law and custom, and international conventions
recognised by Cambodia, and which were committed during the period from 17
April 1975 to 7 January 1979.
The Agreement was finally signed on 6 June 2003, laying down the modalities of
international participation, but a further two and a half years were lost due to
domestic political turmoil in Cambodia following the mid-2003 elections, and then a
slow process to seek the funds made necessary by the General Assemblys decision
that the ECCC should be funded solely through voluntary rather than assessed
contributions by Member States as with the International Criminal Tribunals for the
Former Yugoslavia and Rwanda.
16
Legal history was made as the ECCC opened its doors in February 2006. The
Cambodian Model was the first attempt to mix international and national expertise
and jurisprudence in trial proceedings conducted in the domestic courts under
Cambodian procedural law in Phnom Penh, Cambodias capital.
Key features of the Extraordinary Chambers in the Courts of Cambodia
The Cambodian law promulgated on 27 October 2004 establishing the ECCC had as
its purpose to bring to trial senior leaders of Democratic Kampuchea and those who were
most responsible for the crimes and serious violations of Cambodian penal law,
international humanitarian law and custom, and international conventions
recognized by Cambodia, that were committed during the period from 17 April 1975
to 6 January 1979.
17
The ECCCs subject matter jurisdiction is limited to:
the following offences under Cambodias 1956 Penal Code:
o Homicide (Article 501, 503, 504, 505, 506, 507 and 508)
o Torture (Article 500)
o Religious Persecution (Articles 209 and 210)
16
United Nations. General Assembly 57/228B approving the Draft Agreement and
voluntary contributions
17
Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia
for the Prosecution of Crimes Committed During the Period of Democratic
Kampuchea, with inclusion of amendments as promulgated on 27 October 2004
(NS/RKM/1004/006), hereafter the Law, Article 1, italics added. The details of the
structure and procedures of the ECCC in the following paragraphs are also taken
from the ECCC Law which can be found at
http://www.eccc.gov.kh/en/documents/legal/law-establishment-extraordinary-
chambers-amended
8
the crime of genocide as defined in the Convention on the Prevention and
Punishment of the Crime of Genocide of 1948
crimes against humanity
grave breaches of the Geneva Conventions of 12 August 1949
destruction of cultural property during armed conflict pursuant to The
Hague Convention of 1954
18
crimes against internationally protected persons pursuant to the Vienna
Convention of 1961
19
The Law established Extraordinary Chambers within the existing court structure
consisting of three judicial chambers:
Pre-Trial Chamber (3 Cambodian and 2 international judges)
Trial Chamber (3 Cambodian and 2 international judges)
Supreme Court Chamber (4 Cambodian and 3 international judges)
The ECCC has two Co-Prosecutors (one national and one international) and likewise
two Co-Investigating Judges.
All these judicial officers are appointed by Cambodias Supreme Council of the
Magistracy, which selects the international judges and co-prosecutor from nominees
submitted by the Secretary-General of the UN.
The judges and co-prosecutors are mandated to try to seek unanimity in their
decisions. While national judges are in the majority in each Chamber, a super-
majority is required for any decisions to investigate, try or convict (4 of 5 judges in
the Trial and Pre-Trial Chambers, and 6 of 7 in the Supreme Court Chamber Article
14 new). This super-majority ensures that no such decisions can be made without the
participation of at least one national and one international judge.
In the case of a disagreement being recorded between the two Co-Prosecutors or the
two Co-Investigating Judges, the matter is referred to the Pre-Trial Chamber for
adjudication. Should the Pre-Trial Chamber fail to reach a super-majority, then any
proposed prosecution, investigation or indictment would proceed (Articles 20 new
and 23 new). In this way, neither the national or international co-prosecutor or co-
investigating judge acting individually can block the process.
In the knowledge of how long and difficult were the negotiations to establish the
ECCC, it was never going to be smooth sailing from a judicial point of view. The
structure outlined above leads to its generally being referred to as a mixed or
hybrid court, but judicial decisions have confirmed it as a national Cambodian
court applying international and national law, utilising national procedure
supplemented at times from international practice, and including a minority of
international judges and equal number of Co-Prosecutors and Co-Investigating
Judge.
18
It should be noted that no indictments have been made relating to this offence.
19
It should be noted that no indictments have been made relating to this offence.
9
This structure made the ECCC quite distinct from the ICC or the ICTY and ICTR,
although the extent to which it differed made for frequent legal argument between
the Defence teams and the Co-Prosecutors or Co-Investigating Judges as to how
much of the jurisprudence from such courts should apply.
The Introductory Submission filed by the Co-Prosecutors on 18 July 2007 opened a
judicial investigation against five Suspects (Kaing Guek Eav, known as Duch, Nuon
Chea, Khieu Samphan, Ieng Sary and Ieng Thirith). A case was made for indictment
of all of the five Suspects on crimes qualified under four headings: the national
crimes of torture and murder; crimes against humanity; genocide; and grave
breaches of the Geneva Conventions of 1949.
20
The ECCC has so far embarked on trials in two cases. Case 001 was restricted to a
single crime site (S-21 and its ancillary units) and a single defendant (Duch), who
was indicted initially for crimes against humanity and grave breaches of the Geneva
Conventions of 1949, and then, on appeal by the Co-Prosecutors, also for the national
crimes of torture and premeditated murder. After 77 trial days, held between 17
February 2008 and 27 November 2009, the Trial Chamber judgement was issued on
26 July 2010
21
and the final judgement by the Supreme Court Chamber was issued on
February 2012, affirming his conviction for crimes against humanity and grave
breaches of the Geneva Conventions of 1949, and sentencing him to life
imprisonment. The Supreme Court Chamber also entered separate convictions for
the crimes against humanity of persecution (encompassing murder), enslavement,
torture and other inhumane acts.
22
In Case 002 four Suspects were originally charged with crimes against humanity,
grave breaches of the Geneva Conventions of 1949 and genocide (but only against the
Cham and Vietnamese minorities). The Co-Prosecutors and Co-Investigating Judges
acted conservatively, not taking up the challenge suggested by the UN Group of
Experts in 1998 to test whether mass crimes against the Khmer majority national
group could be qualified as genocide.
23
In this regard, the ECCC has not made
judicial advances, such as those in other national jurisdictions, notably Argentina.
24
20
ECCC, Co-Prosecutors, Introductory Submission, 18 July 2007 (D3).
21
ECCC, Trial Chamber Judgement, Case 001, Kaing Guek Eav alias Duch, 26 July
2010 (E188).
22
ECCC, Supreme Court Chamber, Appeals Judgement, 12 February 2012 (F28).
23
United Nations. Report of the Group of Experts for Cambodia established pursuant to
General Assembly resolution 52/135, para 65 states:
As for atrocities committed against the general Cambodian population, some
commentators have asserted that the Khmer Rouge committed genocide against the
Khmer national group, intending to destroy a part of it. The Khmer people of
Cambodia do constitute a national group within the meaning of the Convention.
However, whether the Khmer Rouge committed genocide with respect to part of the
Khmer national group turns on complex interpretive issues, especially concerning
the Khmer Rouge's intent with respect to its non-minority-group victims. The
Group does not take a position on this issue, but believes that any tribunal
will have to address this question should Khmer Rouge officials be charged with
10
When Case 002 finally commenced trial on 21 November 2011, the Opening
Statements covered all the charges made in the amended Closing Order, but the Trial
Chamber judges had already made a significant severance decision to separate the
charges into several trials, putting the charge of genocide onto the back-burner and
conducting the first trial on crimes relating to forced movements of population and
the killing of military personnel from the former Lon Nol regime. The hearing of
evidence in Case 002/01 ended on 23 July 2013, after 212 trial days, and the closing
statements concluded on 31 October 2013. A judgement is expected by mid-2014.
Case 002/02 is being planned to commence in late 2014, and will include charges
relating to S-21, a worksite, a cooperative, and genocide against the Cham and
Vietnamese.
25
A further two cases, initiated by the International Co-Prosecutor and opposed by the
national Co-Prosecutor, are now under investigation by the International Co-
Investigating Judge. The identities of the Suspects are still confidential.
26
Conclusion
The ECCC is still in train, not yet a historical event to be evaluated. Until it finishes its
work, one cannot venture to conclude whether or how well this process will have
achieved its objective of judicial accounting and contributed to Cambodias struggle to
free itself from the weight of this brutal period in its recent history.
What can be stated unequivocally, however, is that millions of Cambodians are
watching the process intently. By December 2013, more than 250,000 Cambodians had
visited the court. The courtroom holds some 500 people in the public gallery, and its
proceedings are broadcast live on national television and radio. In a poll taken towards
the end of Case 001, more than 80% of those surveyed reported being aware of the
ongoing process, 60% having themselves seen it on television and 70% believing it is
genocide against the Khmer national group.
24
See Ferreira, Marcelo, Genocide, and its definition as the partial elimination of a
national group, Genocide Studies and Prevention, Vol. 8, No. 4, 2013, pp. 6-19.
(http://dx.doi.org/10.5038/1911-9933.8.1.3)
25
ECCC, Supreme Court Chamber, Decision on the Co-Prosecutors' Immediate
Appeal of the Trial Chamber's Decision Concerning the Scope of Case 002/01, 8
February 2013 (E163/5/1I13); Decision on Immediate Appeals of the Trial Chamber's
Second Decision on Severance of Case 002, 23 July 2013 (E284/417); and Trial
Chamber memo to the Director of Administration , 20 December 2013.
26
ECCC, International Co-Prosecutors Written Statement of Facts and Reasons for
Disagreement pursuant to Internal Rule 71(2), 3 December 2008 and National Co-
Prosecutors Response to the International Co-Prosecutors Written Statement of
Facts and Reasons for Disagreement pursuant to Internal Rule 71(2), 29 December
2008, (publicly redacted versions).
11
providing justice.
27
A flowering of public and private reflection, research and comment
is under way, really seizing popular attention alongside the judicial process. Week after
week, month after month, programs and activities are carried out throughout the
country on screen, on stage, in print, in schools, in wats, mosques and churches, at
memorial sites, in meetings, forums, discussions, therapy sessions.
The participation of some 4,000 victims as Civil Parties may be considered one of the
ECCCs main contributions to the development of international justice. However,
precisely because it was a pioneer in this field, the ECCC had no precedents or road
maps on which to rely, but had to develop its own procedures, a process that was
severely impeded by the unfamiliarity of common law judges and United Nations
administrators with this element of civil law.
Further, many Cambodian judges and legal and administrative staff have gained
tremendous benefits from working in a modern court functioning according to
international standards alongside more experienced international colleagues. Issuance of
reasoned judgements; support and protection for witnesses, victims and the defence;
translation and interpretation services; an efficient registry of court documents, most of
which are posted publicly and promptly on the Courts web site along with press
releases and news; outreach activities in the provinces and the media all these are new
features of court management for Cambodia that are now starting to be introduced into
the domestic court system.
Some have criticised the ECCC for its high costs, in a poor country that has many
pressing needs. Others have ridiculed the small number of people brought to trial. But
that was inevitable, given the Courts personal jurisdiction of trying only senior leaders
and those most responsible and the 30 year delay before the process even started. But
even if no more cases are tried, with the successful completion of Cases 001 and 002, the
Court can have established the historical record and judicial accountability by the senior
leaders and those most responsible for the suffering of the Cambodian people during the
period of Democratic Kampuchea the principal objectives for establishing the ECCC
and its true legacy.
Whether the framework of the ECCC may serve as a model for other countries deserves
discussion. A mixed or hybrid court such as the ECCC has certain advantages and yet
also faces some inherent difficulties of divided responsibilities and slow decision
making that either a purely national or international court can be spared.
Certainly holding the trials in-country, with the involvement of national judges,
prosecutors and defence lawyers, proceedings broadcast in the national language,
accessible to direct public involvement, and especially victim participation as Civil
Parties, have been extremely positive features -- critical in attracting such a high level of
popular support for the ECCC, particularly when compared to the international
tribunals. But such an approach of course depends on having a government that
27
Survey of Cambodian Public Opinion, July 31 August 26 2009, International Republican
Institute, published February 2010.
12
supports the process as well as domestic judicial, legal, financial and security structures
capable of sustaining the heavy demands of the court.
International participation was a fundamental aspect of the ECCC and from the start
was a precondition for international financial support, which has been essential to
underpin the relatively costly framework and structure when compared to a purely
domestic process. The involvement of the United Nations necessarily incurs a very
heavy financial and administrative burden, but it can of course bring to the court
expertise, facilities and procedures to complement those prevailing in the domestic
judiciary, not to mention giving greater international exposure and recognition.
Whether to proceed via a purely national or international process, or whether to embark
on the complex road of gaining support internationally and then negotiating, designing
and actually establishing a hybrid process, and what balance should be struck between
national and international elements, is not something that can be prescribed from
outside, but must be decided according to the specificities of each case, taking into
account historical factors as well as the objective and subjective situation.
