This update on the Extraordinary Chambers in the Courts of Cambodia (ECCC) notes with concern the current climate of repression of human rights and political freedom in Cambodia. It also addresses progress on Case 002 and delays in completion of the investigations in Cases 003 and 004.
Current Human Rights Violations
The ECCC was designed to deliver justice for crimes committed during the Khmer Rouge period and promote much needed improvement in Cambodia with regard to respect for human rights and basic rule of law principles. The Open Society Justice Initiative has written about ways in which the ECCC’s positive impact on national judicial processes has been limited because of the government’s political failure to support reform.
Actions of the government over the last months demonstrate a disturbing deterioration of human rights and rule of law in Cambodia that goes well beyond failure to institute substantial reforms. The government’s actions and omissions suggest that it remains willing to subvert or instrumentalize the justice system in favor of political interests. Particularly disturbing is government repression of political speech with violence or threats of violence and abuse of judicial processes as a tool against political opponents. Recent illustrations include the murder of political commentator Kem Ley in July 2016, which was followed by an arrest that is regarded as a shield for political murder, the conviction of Cambodia National Rescue party (CNRP) deputy leader Kem Sokha in a trial widely regarded as a bogus act of political retaliation, and threats of a violent military crackdown against peaceful public demonstrations called by the opposition political party.
Despite this environment, the ECCC continues to make progress in prosecuting crimes that occurred over thirty years ago. However, this allows the current government to claim credit before donors and the international community for its contribution to strengthening the rule of law even as Cambodia’s rulers mock such values and endanger lives in the present. The government of Cambodia demonstrates primacy of politics over process even at the ECCC when it allows Cambodian officials to cooperate only in cases that it wishes to move forward, as can been seen with Cases 001 and 002, and denies their cooperation in cases that it views as politically dangerous, such as Cases 003 and 004. Unfortunately, these circumstances demonstrate vividly to Cambodian judges and lawyers that efforts to incorporate greater respect for human rights and general rule of law principles into their work are not only not favored but might be punished by the government.
The Trial Chamber is approaching the end of the evidentiary phase of the second Case 002 trial. This second trial against former Khmer Rouge leaders Nuon Chea and Khieu Samphan is hearing evidence on crimes including genocide against ethnic Cham and Vietnamese, forced marriage, rape, and internal purges. The first trial in Case 002 resulted in a conviction for the defendants for crimes against humanity related to the forced evacuation of Cambodian cities and execution of civil servants from the previous regime. The Trial Chamber hopes to complete the evidence phase of the second trial by the end of 2016.
The Supreme Court Chamber, which had originally indicated it would announce its decision on the appeal of the first Case 002 trial by late June 2016, announced this month that the decision would be released on November 23, 2016, over two years after the Trial Chamber’s judgment.
Cases 003 and 004
More delays are anticipated in the completion of the Case 003 and 004 investigations against four accused. The court now expects the issuance of closing orders from the international investigating judge to be spread over 2017, with the last in the group completed at the end of 2017. However, the court cautions that there may be further delays, citing such reasons as requests and filings by defense counsel, appeals to the Pre-Trial Chamber, staffing turnover, and even the rainy season. Even after the international investigating judge issues closing orders, the Cambodian investigating judge is likely to file formal notice of disagreement to any recommendations for indictments. Under the rules of the court, this will trigger a petition to the Pre-Trial Chamber before the Trial Chamber has even a theoretical chance to take up any of the cases.
There are many places to lay blame for the debacle of these cases, including the unwieldy breath of the initial submission by the prosecutors, the Cambodian government’s interference and non-cooperation in the cases, turnover in the office of the international investigating judge – which is partially but not entirely related to the problem of political interference, the failure of the initial international investigating judge to prioritize investigation of the cases, and the delay in allowing defense counsel access to the case files. Gridlock also stems from unwieldy procedural complexities that are built into the agreement that established the court and its internal rules. These prevent efficiency and dispute resolution.
The ordeals of Cases 003 and 004 show that, even with massive financial resources, the international community has not figured out how to prosecute international crimes in a manner that meets basic fair trial standards as well as minimal measures of efficiency in terms of time and resources when an unwilling host government seeks to control the process. This is deeply discouraging for victims who still want justice and for the international community, which has sought effective models to foster international criminal justice around the world. The ECCC, the United Nations, civil society, and donor countries committed to international criminal justice need to take a hard and honest look at how the flaws plaguing Cases 003 and 004 can be prevented in future mechanisms to address international crimes. Without drawing careful lessons, victims and donors may well decide that the ECCC’s lesson is that all hybrid tribunals are too expensive and time consuming to be supported.