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A perspective on the extraordinary chambers in the courts of Cambodia

Phnom Penh 

After sixteen hours in the air, four distinctly mediocre films, three plane meals, two change-overs in Qatar and Thailand and a body replete with badly circulated air conditioning I finally arrived at Cambodia's international airport on the outskirts of Phnom Penh. As I lit a cigarette and waited for my friend, already installed at the international tribunal I would be working at over the next three months in the defence team for Ieng Thirith, I recall being struck by two things. The air; rich in moisture and pollution was like imbibing a viscous liquid; the other was the unfailing cheerfulness of almost every person around me.

Fortunately, given that I couldn't operate my debit card or mobile telephone and could speak almost as much Danish as I could Khmer, my friend Lorenzo arrived swiftly. With the assistance of a driver and obligatory Toyota Camry (there are seemingly only four modes of transport in Phnom Penh - the 4x4 Lexus, the Toyota Camry, the tuk tuk and the best and cheapest of all, the moto - allowing you to travel anywhere in the city for around 2000 riel - 40p) I was taken to the basic but reasonably clean guesthouse I would end up staying for two weeks prior to finding my own apartment on the city's illogically numbered, but beautiful, street 258. On one side the idyllic silver pagoda with signature saffron clad monks hastily walking from Wat to Wat each morning and on the other the intersection of three ancient rivers the Mekong, the Tonle Sap and the Tonle Bassac - it truly was a privileged setting especially when savoured in the evening, iridescent pink, sun. Less privileged however was the 5am aerobics and Sunday evening water and light show opposite the flat in Hun Sen Park which offered a constant if not a little repetitive stream of ear piercingly loud Korean techno.

As I began to explore better this vibrant, indulgent and chaotic city what became abundantly clear was the positively Dickensian portrait of rich and poor which, ever more prevalently, appears to co-exist. Enormous cranes building malls and casinos with Chinese money filtered through American private equity groups would be set against markets selling all manner of food items (snakes, toads, spiders) not out of delicacy but necessity. Children, partially clothed, rummaging through general household waste for plastic and other saleable items and limbless father's begging outside expensively designed French owned bistros selling fillet mignon for $27. It could make a person feel at times almost uncomfortable. Not to mention the balding, overweight types sitting at the outside bars with their deeply disinterested teenage escorts. I did on occasions wistfully consider rainy London and a brief to attend the Inner London Crown Court armed with a bail app for a three strikes burglar. Although admittedly, never for very long.

The ECCC

Each morning I and other court staff dotted around the city would aboard a series of antediluvian coaches travelling the two hour journey to and from the court. The Extraordinary Chambers in the Courts of Cambodia (ECCC) as it is known is a large and architecturally not unattractive building situated 17 km from the centre of Phnom Penh within the walls of a military base. Originally not part of Phnom Penh due to its distance from the city the Government, wanting to maintain security but equally wanting the symbolism which came with having the court in its capital, simply re-drew, with characteristic disregard for awkward formality, the city's geographical confines so as to include it.

The purpose of this "special internationalised court", as the Pre-Trial Chamber have coined it, as defined in Article 1 of its 2001 Establishing Law, "is 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 17th April 1975 to 6th January 1979."

The aforementioned three years eight months and twenty days representing the first and last occasions that the Communist Party of Kampuchea ("CPK" or ‘Khmer Rouge' as King Sihanouk first termed them) led by Pol Pot occupied and governed Cambodia from its capital Phnom Penh. A period within which close to 2 million people, on conservative estimates, are said to have perished, largely through starvation and execution, in the pursuit of Pol's communist utopia.

Now anyone who has had even a residual interest in international criminal law will recognise that the wheels of international justice, with the possible exception of the 1945-46 military tribunals in Nuremburg, often grind frustratingly slowly: The International Criminal Tribunal for Rwanda established in November 1994 has two cases still awaiting trial and 11 suspects still at large despite the end of the Tutsi genocide occurring now more than 16 years ago; The International Criminal Tribunal for the Former Yugoslavia established in May 1993 has 40 cases still to conclude and two suspects still at large and yet the conflict in the Balkans at the latest, if one includes the war in the Former Yugoslav Republic of Macedonia, formally ended in 2001; Equally the Special Court for Sierra Leone, upon which the ECCC is said to have been modelled, still has one case outstanding - that of Charles Taylor (physically being heard in the Hague for security reasons) despite the country's civil war officially ending in January 2002.

Frankly however these time frames pale into insignificance in comparison with the length of time it has taken to prosecute those purportedly responsible for the international and domestic crimes visited upon this once great nation during Pol's tenure.

Protracted Negotiations

Only on 21st June 1997 did the then, and shortlived, bicephalous government of Cambodia, comprising Prince Ranariddh (leader of the Royalist FUNCINPEC party, son of the colourful King Sihanouk and winner of the 2.8billion dollar UN backed 1993 elections) and Hun Sen (the uncompromisingly ambitious leader of the Cambodian People's Party and one time Khmer Rouge deputy regimental commander who would later oust Ranarridh in July 1997's bloody coup) ask the United Nations for assistance in bringing these proceedings.

Yet only after nearly ten years of seemingly endless negotiations regarding the Court's composition; its funding; its applicable law; its suspects; and its temporal jurisdiction were the keys finally handed over to the new tribunal on 18th January 2006. It has then taken until 17 February 2009 for the tribunal's first trial (Case file 001) against Duch (pronounced ‘Doik'), the former head of the infamous security centre S-21, to get under way. A trial which despite the defendant admitting 99 of the 132 paragraph Closing Order (rather like a common law Indictment) is still, in 2010, yet to conclude.

Case file 002 which will, I suspect, see Noun Chea (former President of CPK Standing Committee), Ieng Sary (former CPK Foreign Minister), Khieu Samphan (former CPK head of State) and Ieng Thirith (former CPK Minister for Social Action) face the more serious charge of, inter alia, genocide is still only at the investigative stage. A trial, at which all the aforementioned are unlikely to make any admissions, let alone 99, is not envisaged to start before Summer 2011.

On top of this it is right to say that the ECCC have now budgeted for five more as yet unnamed suspects to be investigated. It could therefore be close to 40 years after their rule that proceedings in relation to the Khmer Rouge are concluded.

The less important question is why it has taken so long for proceedings to be instituted. Most commentators would after all recognise the fact that since a number of former Khmer Rouge cadre have now been reintegrated into positions of High Office - like that of Hun Sen himself or Keat Chlon current Finance Minister and former close adviser to Pol - the Government has perhaps naturally been reluctant to encourage expedition in a case where many individuals close to Hun Sen may be exposed or worse prosecuted. Equally difficult for the Government to digest has been the fact that some ex Khmer Rouge, such as Ieng Sary in 1996, had been given amnesty from prosecution by King Sihanouk.

The more important question is rather what impact has the inordinate delay had upon proceedings for those finally before the Court.

The Impact of Delay

Death

Firstly the intervening period of stifled negotiations between 1997 and 2006 has allowed for the deaths of four key members of the former inner sanctum of the Khmer Rouge, the CPK's Standing Committee.

These included the ideological founder and leader of the Khmer Rouge, Pol Pot himself, who died on 13th April 1998; Khmer Rouge Brigadier General, Ke Pauk who died on 15th February 2002; Khmer Rouge Health Minister, Thiounn Thioeunn who died on 16th June 2006; and importantly, Khmer Rouge General, Ta Mok who died on 21st July 2006.

Son Sen, head of the secret police, Santebal and the person to whom Duch at S-21 directly is said to have reported was murdered by Pol with his wife Yon Yat and 11 others at their home on 10th June 1997 a month before the Cambodian Government wrote the letter to the UN.

Of those who are before the Court only three were members of the Standing Committee. Duch, although undoubtedly important given his role as head of the S-21 security centre where almost 15,000 predominantly Cambodian men, women and children were tortured and executed on site or at Choeung Ek, was not a policy maker. Nor was Ieng Thirith, Minister for Social Action during the regime and the wife to Ieng Sary but equally not a person who featured in the big CPK discussions. Interestingly not a person envisaged by respected Cambodian historian and Prosecution expert, Steve Heder in his book, ‘Seven Candidates For Prosecution: Accountability For The Crimes Of The Khmer Rouge' either. Nor is she a person who features often in any writing on the Khmer Rouge or CPK policy. Anecdotally Philip Short's ‘Pol Pot a history of a nightmare' mentions her just nine times throughout the whole 500 odd pages, only four of which are in relation to her work as a Minister. One of which is distinctly exculpatory.

There are arguments therefore to question whether the Court really has before it the ‘senior leaders' of the CPK or indeed those ‘most responsible' for the crimes committed during the regime or whether, due to the period of time that has now elapsed, it is prosecuting (in some cases) those simply alive and available.

Ill-Health and Fading Memories

All are in poor mental and/or physical health bar the youngest (at 67) detainee, Duch: Khieu Samphan had a stroke in 2007; Ieng Sary, whenever I saw him in the detention centre, was bedridden and quite ill. Ieng Thirith spent considerable time in hospital and never appeared mentally able in conference to provide meaningful instructions; and Noun Chea was extremely frail walking now almost exclusively with a stick.

Most were in their eighties, or very near to, and given the average life expectancy in Cambodia is around 62 it is not even assured that all will make it to trial let alone be a useful component of its process.

This is true not only of those on trial but more importantly its witnesses. Many of whom are elderly, poor and have limited access to health care. A great proportion may not see Case File 002 come to trial and those that do will be asked to recall specific events that are said to have occurred over thirty years ago. Pretty unsatisfactory for all concerned.

I had hoped therefore, in the light of these obvious difficulties, to find a tribunal which was not only uncompromisingly fair but efficient and expeditious. Perhaps especially given the allegations of kick-backs and bribery that had surfaced in the year or so since the Court's creation. Regrettably I was disappointed.

Frustrations with the System

Principle of Co-operation

The Court is imbued with the principle of the mutuality of decision making between national and international lawyers and judges. A system designed to reflect the fact that the international side were there simply to assist Cambodia in the trial process. Noble enough an ideal in theory, however in many fundamental respects, impractical in reality. It is not a criticism but a truism to state that the Cambodian knowledge of international law was at times limited. It is equally true to say that decisions by the National lawyers (and I suspect Judges) would often be influenced by their desire not to offend the party line (the party being the all encompassing Cambodian People's Party - Head of which was Prime Minister Hun Sen whose patience with the court wore notoriously thin at the best of times). These factors would often combine to create unnecessary duplication of work, conflicts in the proper direction of the case, and sometimes -in the example of Kar Savuth's closing speech on behalf of Duch - disturbing inadequacies in legal comprehension.

Flawed Procedure

The Court is equally founded upon a French, civil jurisdiction which, in my humble submission, is not ideally suited to cases of this magnitude. At the ECCC there was one single repository of all the evidence potentially to be relied upon by both Defence and Prosecution called ‘the Case File'. This case file was compiled and held by the Office of the Co-Investigating Judges ("OCIJ"). This Office would then, at the close of its investigations, determine on the basis of all the available evidence in the case file what charges each suspect would face at trial. A decision which was only subject to appeal by the Prosecution.

The case file along with the closing order (like an Indictment) is then presented to the Trial Chamber and both Defence and Prosecution (and to a lesser extent the civil parties) effectively emphasise which parts of it assist and criticise those that do not - calling their evidence along the way.

Given that the Trial Chamber can read anything in the case file one ought to have imagined that its content would be rigorously scrutinised so as to weed out information which is insufficiently relevant and equally information which the Pre-Trial Chamber, in advance, ought properly to exclude.

What happened in practice for example was that whole books written about the Khmer Rouge were simply added to the case file by the OCIJ not as in normal criminal trials specific paragraphs and pages but whole texts. Statements containing multiple hearsay also appeared. Confessions obtained by the use of torture to be used for purposes other than to prove who the torturer (as per UNCAT article 15) was equally made the grade.

The lack of specificity in the case file was a cause of continual personal frustration. There was after all no provision within the Court's rules to exclude matters from the case file on any other ground than procedural defects.

The Defence and Prosecution are further prohibited from investigating material themselves and can only suggest particular avenues for the OCIJ to explore on their behalves. This was especially prejudicial to the Defence since all detainees, bar Duch, have exercised their right to silence. The OCIJ therefore can not be expected to know the substance of each individual defence case - they are naturally therefore limited in their ability to know what approach to take when investigating matters on their behalf. Furthermore whenever investigative requests were made it would take months before a decision was taken by the OCIJ to accede to that request or not.

Most alarmingly of all, for those who practice in the common-law world, the Defence are not permitted to cross-examine witnesses. They are limited after examination in chief to suggesting supplementary questions to the Judge to ask of the witnesses for them.

A Fresh Opportunity

I could go on and talk of other frustrations such as the amount of money spent on translating almost every document into three languages (Khmer, English and French) or about the Civil Parties Unit a component of the trial process which never seemed to understand the role it was badly designed to play at the ECCC. But to do so would create the impression that there was not an enormous amount of good work being done at the Court. Since in the main both Cambodians and Internationals alike worked phenomenally hard in the pursuit of a fair trial worthy of a positive and long lasting legacy. Yes there have been problems with the Court and its first case (Case File 001) but the Tribunal and its staff have learned a great deal from those periods and I hope will implement the changes required in preparation for Case File 002 which once underway will stand as one of the most historic trials of the 20th and 21st Centuries.

Charles Durrant

This article was originally published in Issue 46 of Barrister Magazine.

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8 March 2012

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Charles Durrant

2006