New Year, Same Problems at ECCC

I have been working for justice in Cambodia since before the Extraordinary Chambers in the Courts of Cambodia (ECCC) was created, and a lot has happened in the courtroom and in Cambodian society in that time. But on a recent trip to Phnom Penh, I was struck by a profound sense of unease: for as much progress as the court has made, its shortcomings and weaknesses continue to hamper its effectiveness—and increasingly, people are noticing.

Two pressing issues currently illustrate the court’s weaknesses: the boycott of Case 002 by defense counsel, and the failure to bring suspects to court in Cases 003 and 004. These situations feed the growing sense of cynicism and hopelessness about the court expressed by many Cambodians I spoke with. Later this year the Justice Initiative will publish a comprehensive report on the impact of the ECCC in Cambodia, including an examination of how everyday Cambodians feel about the court. But for now, it is essential that the court—and those who care about its success—address these two critical issues.

Defense Counsel Refuse Court Orders in Case 002

Defense lawyers for Khieu Samphan first walked out of court on October 17, 2014, saying that, at the request of their client, they would not participate in the second phase of the Case 002 trial (known as 002/02) until they completed their appeal brief for the first phase (known as 002/01). The lawyers claimed they could not simultaneously participate in the 002/02 trial and prepare the appeal brief for 002/01. They chose to prepare the appeal brief and refused a direct court order to appear at the 002/02 trial proceedings. That refusal has now dragged on for months, making the court seem increasingly impotent.

The ongoing standoff demonstrates that the court lacks adequate tools to hold defense counsel accountable for compliance with legitimate court orders. After threatening sanctions, including removing defense counsel, the Trial Chamber determined that removing the defense team would actually cause even more delay and jeopardize the fair trial rights of all parties. Instead, the chamber postponed further hearings until January 8, 2015 and ordered the appointment of “stand-by” counsel who can step in on behalf of Khieu Samphan in the event his current lawyers renew their boycott. The chamber found that the lawyers’ conduct amounted to obstruction of the proceedings and referred the matter to the home bar association of each counsel.

While the boycott by Khieu Samphan’s lawyers achieved the articulated goal of a delay in Case 002/02, it came at the price of a justifiably angered Trial Chamber, increased public cynicism about the prospect of ever completing Case 002/02, and the considerable economic cost of hiring an international and a Cambodian lawyer to simply stand by.

Although defense counsel did in fact return to court on January 8, their months-long boycott—and the court’s inability to address it—highlight the weakness of the ECCC and failure of its backers (including the UN and donor states) to push for a more robust approach to delivering justice. The defense’s boycott cannot be justified: the court has extended deadlines when requested and offered additional resources to the defense team. Defense lawyers thumbed their noses at a direct court order, and the Trial Chamber, lacking tools to ensure compliance, was made to look powerless. If they want to shore up the court’s effectiveness, the UN, donor states, and the government of Cambodia must publicly denounce the boycott and the court should amend its rules to allow for a more robust response to violation of Trial Chamber orders.

Cambodia’s Obligation to Carry out Court Orders

Similarly, the UN, donor states, and especially the government of Cambodia must back the court regarding the execution of arrest warrants and orders to bring suspects before the court. In the Agreement between the United Nations and the government of Cambodia that established the ECCC, the government of Cambodia committed to ensuring that all court orders, including warrants to enforce summonses to appear, would be carried out without delay. But now there is evidence that the Cambodian government may be balking at this obligation—and the ECCC may not be willing or able to hold the government accountable.

Cases 003 and 004 are currently being investigated by International Co-Investigating Judge Mark Harmon. But his Cambodian counterpart has refused to participate, the government of Cambodia has raised vocal objections to these cases, and the Cambodian side of the court has refused to cooperate in the investigation. Local media have reported that Harmon has summoned at least two suspects to the court for the purpose of charging them, yet it appears the judicial police are not enforcing any warrants to enforce the summons.

The court has an obligation to ensure appropriate steps are taken to enforce summonses and other orders that it issues. The government of Cambodia must be accountable for ensuring that its judicial police enforce orders to bring summoned suspects to the court.

The court has indicated that the 003 and 004 investigations will be completed by the middle of 2015. But suspects in those cases must be formally charged well before that time so they can participate meaningfully in the investigations. Currently, the court is silent about progress of the cases and whether there is any active or passive interference with their resolution.

The government of Cambodia must honor its obligation to ensure that the Judicial Police carry our arrest or other legitimate court orders. The United Nations and the international officials of the court must candidly confront any violation of this obligation. The silence from the court, the UN, and the government of Cambodia about developments in Cases 003 and 004 fuels concern that the parties are not fully honoring their obligations under the Agreement—and that the situation is not being publicly addressed or acknowledged.

A failure of accountability by the government of Cambodia, the UN, and the court regarding the important obligation to carry out court orders damages the essence of the court’s authority and credibility. The UN and donor states must publicly insist that Cambodia uphold the Agreement governing the ECCC by executing summonses promptly and properly.

The ECCC has reached meaningful verdicts in Cases 001 and 002/01, and the Cambodians I spoke with on my recent trip remain guardedly optimistic that the court will in fact deliver justice for Khmer Rouge era crimes. But that optimism is fading. If the ECCC is to fulfill its mandate, it must take a more forceful approach to dealing with the defense boycott and the apparent refusal of the police to execute summonses.