The Extraordinary Chambers in the Courts of Cambodia (ECCC) issued the first trial judgment today in a series of legal proceedings relating to the two surviving senior leaders of the Khmer Rouge. The case pertained to events beginning in 1975 and the accused, now both in their 80s, have been convicted and sentenced to life imprisonment.
I worked as a legal officer analyzing the evidence and the legal charges filed against the accused in 2009. Even then, I wasn’t sure if this day would come. The advanced age of the defendants could have led to the premature conclusion of the entire proceedings, which occurred when the case was closed against a former co-accused, Ieng Sary who died in 2013, and his wife Ieng Thirth, who was declared unfit to stand trial in 2012. Today’s judgment is perhaps the most remarkable demonstration of the value of persistence in attaining international justice globally: justice delayed is still justice.
The challenges involved in addressing this case were enormous. But the collective efforts to maintain these complex legal proceedings are truly humbling. It is a testament to the commitment to obtain accountability in honor of the 1.7 million lives lost and to honor the survivors rebuilding their communities. There are several unique factors about the ECCC which were somewhat revolutionary in changing my personal experience as a practitioner of international criminal law.
Unlike previous international courts I have worked at, (the Special Court for Sierra Leone being the exception), the ECCC is based in the country where the crimes took place. I believe this makes a profound contribution towards establishing the local relevance of the legal proceedings and enabling a meaningful exchange between the court and the constituents of justice: the people affected by the crimes. The UN often cites the impressive statistics of the number of Cambodian citizens who have participated in its outreach program: over 67,000 people attended the trial in Phnom Penh. But outside the formal court setting, I had interactions on a daily basis that demonstrated to me how proximity shapes collective consciousness. When trials are held at home (security permitting), there is the ability to develop overt awareness of the fact that legal proceedings were taking place, but there is also the opportunity to facilitate more subtle forms of healing and closure. For example, local Cambodian journalists with ready access to the court created an enabling space to build the bravery it takes to buy a newspaper where the front page frequently features the photographs of people feared for generations, but who are now behind bars in a local prison.
The ECCC also pioneered a system that I think is a very powerful contribution to international justice and requires more thought as a future model for accountability networks. Inspired by similar efforts in the Balkans, the ECCC mandated that each international staff is partnered with a local counter-part, and vice-versa. There are several dynamics that can lead to difficulties in implementing this system (including parity of pay and management of workflow). However, from a practitioner point of view, there are innumerable ways that international UN efforts benefit from being led by local people, who are able to speak directly to witnesses in their shared language and who understand the nuances of societal roles that can contextualize fact findings, such as issues of socioeconomic standing, ethnicity, and gender. On a personal level, it was deeply moving to collaborate with colleagues who lived with the consequences of the events that led to the formation of the court. In my experience at other UN courts, there had been concerns about balancing hiring local staff with the need to maintain the appearance of neutrality, however, my experience at the ECCC demonstrated the incredible contribution of individuals who are living the reality of the history of their country.
As an international investigator, these unique factors at the ECCC ensured that my experience was far more impactful as a result of literally living in the crime scene I was investigating and working with colleagues who had survived aspects of what we were jointly investigating. I witnessed a deep desire that justice should be done, no matter how long after the fact.
The legal challenges may seem dry to highlight, but there were two legal components that were unique additional factors for those working on accountability in Cambodia and ought to be acknowledged as significant achievements that provide a potential template for future international justice proceedings.
First, the ECCC is a hybrid tribunal, meaning that, aside from hiring both international and national staff, the law is also a blend of international and national norms. However, fair trial rules require that an accused must be judged according to the law in place at the time of the alleged events. Unlike any other existing international or hybrid court, I was required to determine the legal standards applicable more than 30 years prior to the time of investigation. At the International Criminal Tribunal for Rwanda I was determining law in place in 1994, only a year before the Tribunal was established in 1995. A similar time period applied to the Former Yugoslavia Tribunal. At the International Criminal Court (ICC) I worked on an investigation where the guiding instrument, the Rome Statute, was already ratified as national law at the time of the events. The ECCC presented an unprecedented challenge of conducting historical legal research in the context of maintaining the rights of the accused, while in a race against time to collect testimonial evidence in the context of fading memories and witnesses dying of old age. The judgment today demonstrates that historical crimes are not immune from prosecution. Assessing the law in place at the time of the events is not a block to accountability.
The second unique legal challenge faced by ECCC relates to its status as the only international tribunal based explicitly on the civil law model, as opposed to the purely adversarial, common law system that other UN courts utilize. Although there were several aspects of the civil law system that required rapid learning from common law practitioners such as myself (such as the role of the investigating judges in driving fact finding), a key point of distinction between these two legal traditions is that victims can be joined to the ECCC proceedings as civil parties. This model has been incorporated within the ICC, although there have been concerns from States who are reluctant to provide the funding. At the ECCC, the involvement of victim’s was non-negotiable because it is a key component of the Cambodian national civil law system, and thereby had to be respected for the ECCC to maintain the hybrid nature of its operations. However, seeing the potentially positive impact the opportunity to be involved in the proceedings can have for victims, added to my impression that the ECCC provides an important reference point for future accountability efforts, including at the ICC.
The ECCC has endured a multitude of challenges, and there is no shortage in supply of critiques on the nature of its operations. I certainly don’t intend to gloss over the intricacies of implementation of accountability processes and how they can go awry, including in the Cambodian context. However, the ECCC judgment issued today proved me wrong on several fronts. Up until now, I was not sure if delayed justice could truly be of value. Certainly, without concluding the trial stage through to judgment, it would be harder to identify positive contributions despite the delays. But on reflecting on the value of today’s judgment, it became apparent to me that the ECCC provides an important opportunity to assess the empowering potential for localized international justice, no matter how late.