Christopher “Kip” Hale contributes this guest post, the second in a two-part look at the Extraordinary Chambers in the Courts of Cambodia. Mr. Hale is Senior Counsel at the American Bar Association (ABA) Center for Human Rights. Previously, he was a prosecuting attorney in the Office of the Co-Prosecutors at the Extraordinary Chambers in the Courts of Cambodia, and has done legal defense work and advised Judges at the International Criminal Tribunal for the former Yugoslavia.
This article represents the views of the author and, except as specified otherwise, does not necessarily represent policy of the ABA or the Center for Human Rights.
By Chrisopher Hale
More than a quarter century of impunity, a decade of negotiations, and five years of investigations and pretrial litigation came to a crescendo on November 21, 2011. On this not so regular Monday morning in a gallery style courtroom situated in the outskirts of Phnom Penh, opening statements in the Khmer Rouge mega-trial were heard by the Extraordinary Chambers in the Courts of Cambodia (ECCC), better known as the UN-backed Khmer Rouge Tribunal. Operating under an ever-present cloud of alleged corruption and political interference, the ECCC is a sui generis institution that many believe is failing. Not even the start of the trial of the most senior leaders of the Khmer Rouge still alive – and generally categorized as the largest and most complex international criminal trial since Nuremberg – has abated the persistent flow of international criticism lodged against this “internationalized” criminal court. Under these conditions, how can one not think that that the ECCC is a regret?
In the case of the ECCC; however, context is everything. Many examine this Court in the proverbial vacuum. From commentators and journalists to defense counsels and victim groups, these and many other individuals look at snapshots of the ECCC as they conclude that the Court is beset with problems. To date, detractors have taken bits and pieces of information to create a sweeping generalization that the ECCC is allegedly plagued with corruption and governmental meddling, woefully inefficient and incompetent, and consistently suffers from a lack of international confidence and funding as a result. Are they completely wrong and off base? No, of course not, or at least not on all of these accounts. The Court certainly has its faults, and some of them are anything but insignificant. Is this a conspiracy of criticism, all aimed to take the ECCC down? Again, no. Many, if not all, of those that complain and critique do want the Court to succeed and become a legitimate, respected establishment. My colleague and friend Mr. Bair counts as one.
The critics’ error is not in a failure to raise valid concerns. Their error, on the contrary, is taking these problems as evidence that the entire ECCC undertaking is a fiasco, or at best a disappointment. They make their assessment by judging only singular events as they relate to the perfect, and not judging these events in the totality of circumstances that they occur. If they did judge the Court in its “totality”, then the ECCC would rightly be deemed an achievement in their eyes. All things considered, the ECCC has achieved a series of accomplishments that cannot be overlooked, dismissed, or minimized. While some may classify this belief as either an indication of low standards or starry-eyed optimism, the measure of justice and success that has and is occurring in Cambodia is a relative triumph that should give the international community hope, not despair.
Let us evaluate the context in which the ECCC find itself in order to draw out the reasons why this Court is a success. Even before the Khmer Rouge seized power of the entirety of Cambodia on April 17, 1975, the country knew little else other than war. Southeast Asia generally and Cambodia specifically was at the epicenter of an armed power struggle between the world’s most influential countries. During the Khmer Rouge regime, the devastating effects of war was amplified five times over as the country’s radical communist government gave into paranoia and cannibalized itself. The aftermath of the Khmer Rouge resulted in a staggering 25 percent loss of its own population with a disproportionate amount of loss felt by the intellectual, economic, and institutionalized elite, such as doctors, lawyers, diplomats, government officials, business leaders and academics. If this destruction was not awful enough, the 1980s and most of the 1990s returned the country to civil war and general instability. By the time the whisper of a Khmer Rouge tribunal was seriously discussed in 1997, Cambodia was a very dim shadow of its former colonial self. The country’s population was more or less resilient farmers who survived war and the Khmer Rouge. Against this backdrop, it is rather amazing that an internationalized tribunal – not even an UN imposed ad hoc international one like the ICTY and ICTR – exists and is functioning, and one where the primary power in the Court rests in the hands of Cambodian lawyers and judges. This is not to say that capacity does not exist in Cambodia. The degree in which the Cambodian half of the ECCC has stepped up makes the Court all the more remarkable. However, the point remains that the Cambodian situation was less than ideal for setting up a tribunal that would be responsible for prosecuting the most challenging types of crimes and one of the most difficult cases, all without one single substantive law or procedural rule in existence. The ECCC’s mere existence is noteworthy.
Along these same lines, the political compromise that resulted in the treaty that forms the legal foundation of the ECCC is one of the Court’s first successes. Many readers may find this conclusion rather astonishing as the bilateral ECCC treaty between the United Nations and the Kingdom of Cambodia is often put up as a reason why the Court is a failed enterprise from the start. To a certain degree, the distribution of power as that found in the ECCC structure will likely never be replicated as it presents too much inefficiency. Yet, again, let us evaluate this matter more closely. First and foremost, it is the Cambodians’ country, and if it was one of their requirements that they have most of the power, than that is their right. International involvement, while strongly recommended for quality purposes, is not a necessity. Secondly, the international community and the Kingdom of Cambodia had plenty of diplomatic reasons to walk away from the negotiating table – which the UN did at one point – and never revisit the issue again. For decades prior, Cambodia was subject to intervention by almost every international and regional hegemon, from the United States, USSR, China, Vietnam, and Thailand. As a result, distrust or skepticism of foreigners is as prevalent as rice fields in Cambodia. The international community, on the flip side, possesses Southeast Asia fatigue after years of frustration in the lack of “progress” in their respective regional agendas. A feeling that efforts go unrewarded in Cambodia, as well as a similar level of distrust, resided in more than a few international powers that make up the UN.
In the end, however, these legitimate reasons for abandoning the idea of an internationalized criminal court were overcome, and the ECCC agreement was signed. Better yet, money was put up and continues to flow, albeit in an inconsistent fashion. Although some explain this success away in that the international moral outrage about the Khmer Rouge era crimes necessitated that “something” had to happen, this belief is just not true. Like countless atrocities before and after the Khmer Rouge, it is very feasible that the crimes of the Khmer Rouge regime never left the pages of textbooks and novels. Not to say we must be thankful for the ECCC and thus accept its flaws. Rather, we should note that political compromise, particularly in the context of international diplomacy, is a feat in and of itself. Look no further than current American domestic politics as proof of this fact.
The political build up to the Court is not the only area where the ECCC is a success. In the more important realm of the tribunal’s work, the Court has overcome every major hurdle it has faced. In 2006, when an impasse between International and National Judges on the creation of the ECCC’s Internal Rules seemed destined to torpedo the whole tribunal, an agreement was eventually reached. In 2007, when the Co-Prosecutors filed their initial allegations of criminal wrongdoing, most people thought the key senior members of the Khmer Rouge would never be arrested. They were. When the judicial investigations in Case File 001 and 002 – the legal parlance of the ECCC refers to cases by number, not name of defendants – were underway, the common belief was that neither case would get to trial. To date, Case File 001 ended in a conviction that is currently awaiting an appeal judgment, and Case File 002’s trial has started. When the trial in Case File 001 began, most people thought it would be inefficient and unfair. At the conclusion of the nine-month trial – a short trial under the circumstances of that trial –, the trial was resoundingly viewed as fair. A case could be made that no defendant in international criminal history has ever received so much liberty to participate and comment on his own prosecution as that afforded to Kaing Guek Eav alias “Duch”, the sole defendant in Case File 001. When Case File 001’s trial ended, everyone said it would likely be the only trial the ECCC tries. Again, as noted, the trial in Case File 002 has begun.
Not only has the ECCC overcome its challenges, but it also has accomplished feats no other international court has accomplished. The first ever civil party lawyers and civil party victims to address an international tribunal occurred in Case File 001 and 002. Significant civil party participation in the investigation and trial phases of these two cases were also firsts. The first ever official interaction of a defendant and his victims, in the context of an investigation, occurred in Case File 001. The ECCC is the first functioning Civil Code influenced court, as most other international tribunals are mixtures or Common Law influenced courts. Probably the most important record, over 31,000 Cambodians, including thousands of victims, attended at least one trial day in Case File 001, not to mention the thousands more that followed on television, radio or in print media. This number dwarfs that achieved by any other international tribunal, even the Special Court for Sierra Leone that also operated in the country where the crimes occurred. Almost like the “little engine that could”, we must acknowledge not only the progress of the ECCC in the face of its perceived doom, but also its unprecedented accomplishments.
To conclude, the criticism of the ECCC, while constructive in some respects, raises a larger problem at play in the field of international justice. Put simply, very well intentioned commentators make the perfect, the enemy of the good. In some instances, it appears that these individuals would prefer no measure of justice unless it is perfect, or at least extremely close. By way of example, Mr. Bair’s assessment that the ECCC model as it applies to victims is a fait accompli illustrates this point well. The worth of the Court cannot hinge on the opinion of victims alone, as such a standard is virtually impossible to satisfy. The better point is that Case File 001’s trial and its process convinced many non-believing victims that “justice” was rendered. The ECCC’s legacy will likely turn around more non-believers, both during this second trial and down the road. More acutely, let us take note that victim rights are a hot topic due to the fact that the ECCC exists, and likely would not otherwise. In a country where myths often prevail and a younger generation knows little to nothing about the Khmer Rouge, the ECCC and the attention it garners has raised awareness, educated and dispelled falsehoods in a way that a Truth and Reconciliation Commission likely could not.
Regardless if one wants to view it as “trial and error” or incremental developments, the international mechanism of accountability for those that perpetrate international crimes is a work in progress. While this statement may not be groundbreaking, what is often forgotten is that there is no other way to attain a sophisticated legal enforcement system other than through methodical developments forged over decades. Drawing a parallel to the United States, prior to and even immediately after Marbury v. Madison, did not the courts of the individual states look at the U.S. Federal courts as problematic and not to be taken seriously? Today, the U.S. Federal Courts are one of the most respected aspects of the American legal system. In this regard, despite its flaws, the ECCC must be seen as both a necessary step and an important lesson in the field of international justice.