Up to three million people perished between 1975 and 1979 in Cambodia. These deaths occurred under the Khmer Rouge regime which was in power for 3 years, 8 months and 20 days, after which followed a long civil war. The war ended in 1998, and the Khmer Rouge political and military structures were dismantled – the following post by Josh Rosensweig, a defence counsel who has worked on the trial of a member of the Khmer Rouge, discusses the rule of law and the role of the Extraordinary Chambers in the Courts of Cambodia…
The Extraordinary Chambers in the Courts of Cambodia, or “ECCC”, is a UN-backed tribunal constituted for the purpose of bringing to trial senior leaders of the Communist Party of Kampuchea (“CPK”) – better known as the Khmer Rouge – which governed Cambodia between April 1975 and January 1979. In 1997 the Cambodian government requested the United Nations (UN) assist in establishing a tribunal to prosecute the senior leaders of the Khmer Rouge.
The ECCC is a hybrid, or ‘internationalized’ court, which means that both its institutional structure and its governing law draw simultaneously from international and local sources. The Court, which has been operational since 2006, has so far completed two trials: one against Kaing Guek Eav alias Duch, the chief of a Phnom Penh-based prison called Tuol Sleng, and a second against Nuon Chea and Khieu Samphan, two of the surviving leaders of the CPK. Until March of this year, I was one member of an eight-person defence team representing Nuon Chea, the former Deputy Secretary of the CPK. Nuon Chea and Khieu Samphan presently await the verdict in their case, which is due next month.
The ECCC confronts the most basic of rule of law problems – problems to which solutions would be taken for granted in an Australian court – on an almost daily basis. One example often lost on court observers is that the rules applicable to proceedings before the Tribunal exist in a constant state of flux. Indeed, three entirely distinct systems of rules apply simultaneously: Cambodian law, to which the constitutive documents of the Tribunal give primacy; the “Internal Rules”, an ad hoc procedural code adopted by the judges of the Tribunal shortly after it was constituted; and “rules established at the international level”, from which judges are entitled to “seek guidance” under certain conditions. Although the statute and jurisprudence of the Tribunal have set rules governing the circumstances under which each of these sources applies, in practice those rules have been interpreted so liberally that almost any procedural question could be addressed using any one, or a combination, of these sources.
These difficulties are aggravated by the ambiguity inherent in the notion of “rules applicable at the international level”. No code of international criminal procedure exists, and the rules in place at the international courts which do exist vary, sometimes substantially. Each lawyer and each judge is furthermore grounded in his or her own national legal system. Some are rooted in the common law, others in the civil law. When questions of procedure arise, the bench is inevitably bombarded with an array of opinions, each one cherry-picked from the menu of available sources. Because few clear rules exist, these opinions are often all plausible interpretations of the governing law. The law’s task, to articulate a set of transparent and predictable rules for conduct, is almost impossible.
Court Procedures in the ECCC
An issue which has received much more attention – but no real resolution – is the role of the present-day Cambodian government in proceedings before the ECCC. Cambodian politics remain fundamentally authoritarian, and widespread irregularities including outright fraud are routinely reported during regularly scheduled elections. The independence of the Cambodian judiciary – from which national-side judges are selected at the ECCC – is generally seen as derisory. Worst of all, numerous leading members of the government – including the Prime Minister, the Chairman of the Senate and the President of the National Assembly – are themselves former Khmer Rouge military officers of middling or senior authority. Not surprisingly, the government has actively (and often successfully) interfered with the effort to investigate the criminal responsibility of CPK officials below Nuon Chea and Khieu Samphan in the hierarchy. For Nuon Chea, this is a concern of critical importance: it has been his position, not just during trial, but in his numerous statements and interviews over the course of the last 15 years, that much of the responsibility for goings-on during Democratic Kampuchea lies with precisely these officials – those whom he calls the “bad cadres” whose conduct deviated from centrally-directed CPK policy. So long as their role remains obscured, Nuon Chea’s ability to mount an effective defence is necessarily constrained.
The importance of the presumption of innocence
From the perspective of defence counsel, the most fundamental rule of law challenge is the presumption of innocence. For the overwhelming majority of Cambodians and court observers alike, Nuon Chea’s guilt was always apparent. I remember on one occasion taking questions from a group of lawyers and civil society representatives visiting the ECCC from abroad. When I explained that indeed Nuon Chea maintains his innocence in respect of the charges against him, I encountered a room full of incredulous expressions. So I tested the visitors’ knowledge about the proceedings before the Court: Did they know Nuon Chea’s role in the CPK? No. Did they know the temporal jurisdiction of the Tribunal? No. Could they list the crimes charged in the indictment? No. The conclusion followed: they had no idea what Nuon Chea was accused of, but they were certain that whatever he was accused of, he must surely be guilty.
Obviously, this is not the sort of discourse found among close court observers or trial participants. But our visitors’ skepticism that a not guilty verdict was possible is distressingly common. The danger this poses for the rule of law is complacency: both the energy and the critical posture required for a nuanced assessment of the facts may be difficult to muster. Shortcuts around rigorous trial procedure may be encouraged by a pervading sense that the result is already known. Although these outcomes are not inevitable – they can be resisted by dedicated and alert judges and lawyers – at the ECCC the threat has always hovered. It materialized acutely in some parts of the proceedings; it was resisted more successfully in others. The moment of truth in that regard will, of course, be in the forthcoming judgment – and not just the result, but also the reasoning.
The significance of these issues (and others) is amplified at the ECCC because its founding was widely seen as a teachable moment for the Cambodian legal system. Indeed, the ECCC trial judges famously described the tribunal as a “model court” in Cambodia. The Tribunal’s ability to overcome the many rule of law related obstacles it faces and act as the model court it purports to be therefore bears not only on the success of its primary objective, to dispense justice, but also on its secondary one, to have a lasting and positive effect on the quality of justice in ordinary courts. So far, results in that regard are elusive: by most accounts, domestic criminal proceedings are business as usual. Yet there is room for optimism in the more mundane interactions between national and international lawyers and law students, not only at the Tribunal itself, but also in civil society organizations and in law schools. The advent of the Tribunal has rained down upon Phnom Penh a barrage of rule of law talk, in courtrooms, conferences and classrooms. How well Cambodian legal institutions can walk that talk – from the ECCC on out – is right now still a question for posterity.
Josh Rosensweig first joined the ECCC in 2010. He has worked at the Tribunal in various capacities, including almost two years as a member of the defence team for Mr. Nuon Chea. Prior to his association with the ECCC, Josh practiced at a commercial litigation firm in New York City. He has also taught at law schools in Delhi, India and Phnom Penh, Cambodia. Josh attended law school in Canada and the United States and holds an LL.M. focusing on international and human rights law. Join the discussion about rule of law issues on Twitter @RoLAustralia.