Two significant but widely anticipated developments pose challenges to the legacy and completion strategy of the Extraordinary Chambers in the Courts of Cambodia (ECCC). These are explored in the latest monitoring report from the Open Society Justice Initiative.
On August 4, 2019, 93-year-old Nuon Chea (“Brother No. 2”) died in detention. In two separate proceedings, ECCC judges convicted Chea of war crimes, crimes against humanity, and genocide. However, the second judgement, including the sole conviction on charges of genocide, was still on appeal to the Supreme Court at the time of his death. Will this conviction stand? Chea’s attorneys argue that the Supreme Court should vacate the trial verdict in order to uphold the presumption of innocence. Neither Cambodian law nor the ECCC’s founding documents offer clear guidance on how to proceed. Precedent from the International Tribunal for the former Yugoslavia suggests that that a trial judgement should stand when the accused dies while appeals are still pending, but its jurisprudence is not binding on the ECCC judges.
Chea’s co-accused in the second case, Khieu Samphan, is appealing his conviction for war crimes, crimes against humanity, and genocide on numerous grounds. The prosecution is also appealing a trial chamber ruling that male victims of forced marriage did not suffer crimes against humanity. Those appeals will continue before the Supreme Court.
Meanwhile, in the final case on the docket of the co-investigating Judges, one international and one Cambodian judge, issued conflicting rulings in relation to charges of crimes against humanity, war crimes, and genocide against Yim Tith (Case 004). The international judge ordered an indictment, while the Cambodian judge ordered dismissal because in his view, Yim Tith is not a “person most responsible” for the crimes, meaning that the ECCC lacks jurisdiction over the case. This development was expected, following similar developments in a prior case against accused Ao An and Meas Muth (Case 003), and the Cambodian government’s open opposition to either case proceeding. What will happen with these cases now is not clear. The parties may appeal the conflicting findings to the Pre-Trial Chamber, but the ECCC’s rules and judicial precedent provide unclear guidance on how to resolve the dispute.
How these issues are resolved may profoundly affect the ECCC’s legacy, including how Cambodians understand the history of the Khmer Rouge era and how they understand the rule of law.
Click here to download a copy of the 7-page report from the Open Society Justice Initiative website.
The Justice Initiative has been monitoring the work of the tribunal since before it began operations in 2007 as part of its work to ensure accountability for war crimes, crimes against humanity, and genocide.