Extraordinary Chambers in the Courts of Cambodia: Developments and Completion Timeline

This post details significant developments at the Extraordinary Chambers in the Courts of Cambodia (ECCC) since the last Open Society Justice Initiative Recent Developments report of January 2019.

On November 16, 2018, the Trial Chamber issued a summary of its second judgment against Nuon Chea and Khieu Samphan finding the accused guilty on charges of genocide, crimes against humanity, and war crimes and handed them their second sentences of life in prison.  

Publication of Full Trial Judgment in Case 002/02 against Nuon Chea and Khieu Sampan

On March 27, 2019, the Trial Chamber issued the full judgment in the three languages of the court.  The full judgment, 4,101 pages in Khmer, 2,387 pages in English, and 2,828 pages in French, details the evidence of the Khmer Rouge conduct and context presented at the trial, the elements of the crimes charged, and the responsibility of Nuon Chea and Khieu Sampan for crimes committed. The trial commenced with opening statements on October 17, 2014 and concluded on  January 11, 2017.

A summary of the major conclusions of the judgment is set forth in the January 2019 Justice Initiative report referenced above. 

Nuon Chea and Khieu Sampan have both indicated they intend to file appeals against the judgment, and the court granted time extensions to file formal notices of appeal detailing their reasons until July 1, 2019. The court projects an Appeals Chamber judgment by the fourth quarter of 2020.

Nuon Chea Authorization of Appeal and Impact of Death of an Appellant

With Victor Kopek no longer acting as a lawyer for Nuon Chea, Doreen Chen has stepped in as lead counsel along with Son Arun. They submitted a petition, which attached a letter from Nuon Chea, authorizing the filing of an appeal against the Case 002/02 judgment and requesting that the letter be added to the case file, classified as public, and added to the ECCC website immediately. Ordinarily an accused’s signed authorization to appeal a judgment is attached to the notice of appeal. Nuon Chea’s lawyers argue that his advanced age and health support the need to file the statement immediately—rather than waiting until July 1, 2019 when the formal notice of appeal is due.  Several paragraphs in the filing are redacted and apparently describe Nuon Chea’s current state of health at age 92.

Nuon Chea’s lawyers state that “in the event of Nuon Chea’s sudden death, the appellate proceedings would be immediately terminated.” The petition signals a concern on the part of Nuon Chea and his lawyers that he may die before the notice of appeal is filed in July and emphasizes Nuon Chea’s desire that the public know of his basic dissatisfaction with the judgment.

This raises the question of what happens to the Case 002/02 judgment in the event of the death of one of the convicted persons after an appeal is lodged but before an appeal judgment is issued. 

Cambodian law and ECCC precedent support the proposition that the ECCC has no jurisdiction to continue a trial upon the death of an accused. They are less clear with respect to proceeding with the appeal of a judgment following the death of a convicted person. They do not address the status of the Trial Chamber judgment in the event an appeal cannot go forward because of the death of the convicted person. 

Relevant case law from the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) addresses the issue.  In Prosecutor vs. Rasim Delic, IT-04-83-A, the accused, Rasim Delic, who was convicted of various crimes, filed an appeal but died before a decision was issued.  His son wished to continue the appeal on his behalf.

The Appeals Chamber’s examination of domestic legislation and case law led it to conclude that no rule existed under customary international law as to the finality of the trial judgment when the appellant passed away.  After examining the issue, the chamber held that it had no jurisdiction to continue the appeal. Further, it found that because the presumption of innocence does not apply to convicted persons pending an appeal, and that the appealing party bears the burden of proving errors sufficient to invalidate a trial judgment, the trial judgment remained in force. 

The Delic decision has been criticized as allowing potentially flawed judgments and findings with regard to important historical questions to stand untested by an appeal process and for diminishing the right of an accused person to clear his or her name. It cannot be certain whether, faced with similar questions, the ECCC would follow this relevant precedent.  The situation for the ECCC is further complicated by the fact that 002/02 judgment contains overlapping findings that relate to two accused.  If an appeal decision is issued relating to only one accused, inconsistent or unfair conclusions may result.

New International Co-Prosecutor

On April 2, 2019, the UN Secretary General announced the appointment of Nicholas Koumjian to head of the Independent Investigative Mechanism for Myanmar.   Koumjian has been the International Co-Prosecutor at the ECCC since October of 2013 and had lead responsibility, along with Cambodian Co-Prosecutor Chea Leang, for both of the Case 002/02 trial and the Case 002/01 appeal.  While the court has made no formal announcement of his departure, it appears to be imminent. 

The agreement establishing the ECCC provides at Article 6(6) that in the case of a vacancy at the post of the international co-prosecutor, the person appointed to fill this post must be the Reserve International Co-Prosecutor.  Brenda Hollis is the Reserve International Co-Prosecutor, having been appointed in February 2015 after nomination by the UN Secretary-General and approval of the Cambodian Supreme Council of the Magistracy. Hollis is from the United States and has vast experience prosecuting international crimes.  She previously served as the Prosecutor of the Special Court for Sierra Leone and as a senior trial attorney at the ICTY.

Updated Completion Plan for Cases 003, 004, and 004/02

The court administration filed an updated Completion Plan dated March 31, 2019 with estimated time frames for progress in the court’s remaining cases. According to the plan, the two cases currently before the Pre-Trial Chamber (004/02 with charges against Ao An, and 003 with charges against Meas Muth) are scheduled to reach decision in the fourth quarter of 2019.  In the third case, 004 with charges against Yim Tith, the court expects a Closing Order within the next two months and anticipates a decision on any appeal to the Pre-Trial Chamber by the first quarter of 2020. 

The Recent Developments report of January 2019, referred to above, describes these cases in more detail.

The updated Completion Plan also discloses that in each of the two cases on appeal to the Pre-Trial Chamber, three separate appeals of the Co-Investigating Judges Closing Orders were filed:  by the accused, the International Co- Prosecutor, and the Cambodian Co-Prosecutor.  Because the Closing Orders in each case contained both an indictment and an order of dismissal, it can be assumed that the accused and the Cambodia Co-Prosecutor filed an appeal against the indictments and the International Co-Prosecutor filed an appeal against the dismissal orders. 

The proceedings and filings before the Pre Trial Chamber are in camera, meaning that they are private and excluded from the press and public. Decisions of the court are, absent exceptional circumstances, public.

The fundraising status for the court for 2019, critical to its ability to complete Cases 003, 004, and 004/02, stands as follows according to the court’s latest Completion Plan:                                                                                                                                                                                                                                      

International Side   Cambodian Side        
2019 Budget     $16.01M       $5.27M
Committed by UN$7.5M    0
Committed by Cambodia0$3.9M   
Donors $6.5M   ?(one donor)
Remaining $2.01M    $1.37M  

Funds have not been made available in the court’s budget for a special envoy from the UN to liaise with donors and the court. David Scheffer served in this position for many years.  It is not clear how the failure to have a competent person in this position with impact the court’s future fundraising efforts.