Sixteen years ago, the Open Society Justice Initiative established a program to monitor the newly established Extraordinary Chambers in the Courts of Cambodia (ECCC). The program was developed in acknowledgement of the exceptional challenges that the court would face. The ECCC, founded by a partnership between the United Nations and the Government of Cambodia, was designed with a unique, complex structure to address concerns about Cambodia’s rocky record for political meddling in judicial decision making.
The Justice Initiative has a deep history of monitoring atrocity crimes trials and their associated courts. We believe that robust public monitoring enhances the integrity of and confidence in such courts. The constructive and engaged criticism from stakeholders and the increased transparency that monitoring brings serves to promote an accountable justice mechanism that is better understood and appreciated by the affected population. The purpose of the Justice Initiative’s ECCC monitoring program was to support the success of the court in meeting its goal of delivering a measure of accountability consistent with international standards and in a manner relevant and accessible to the Cambodian population. We sought to examine and report, from the perspective of a human rights organization, on the institution’s compliance with international fair trial standards and its efforts to deliver a practical and transparent measure of justice to the people of Cambodia.
The monitoring reports, blog posts, and other Justice Initiative publications from 2004 through this year are available on the Justice Initiative’s website.
The ECCC continues to operate but is nearing completion of its caseload. After three extensive trials, two judgments have been affirmed in final appeals (Cases 001 and 002/1), and a judgement in the second Case 002 trial is currently on appeal. Kaing Guek Eav (“Duch”), convicted in Case 001, died in custody this week while serving a life sentence for crimes against humanity. The Supreme Court Chamber terminated Case 004/2, with charges against Ao An, after months of procedural deadlock. Two remaining cases with charges against additional accused are pending but are mired in procedural quagmires and, although extensive indictments have been issued and affirmed by international judges, are unlikely to ever be tried because the national judges at each level that has considered the cases seek their dismissal. A brief review of the status of these cases can be found in a Justice Initiative press release of August 1, 2020 and the earlier reports it cites.
Since then, several ECCC-supporting UN member states have requested that the forthcoming session of the UN General Assembly take up the issue of a residual mechanism for the court.
In spite of the remaining work at the court, the Justice Initiative has made a difficult decision to end our monitoring of the ECCC. Several factors led to this conclusion.
First, while important tasks remain, the court has accomplished most of its core work. The two major cases of the court have been tried and future trials are unlikely. Its contributions to public understanding, modeling the rule of law, and accountability have largely already been made. The extent of its contributions in these areas will be a matter of ongoing debate.
Second, the internal tensions surrounding compliance with judicial independence and international standards embodied in the complexity of the agreement that established the court have become more pronounced in the past few years. This is reflected in three areas: the Cambodian government’s hostility, replicated in the actions of the national judges, to any cases beyond Cases 001 and 002; the UN’s equivocal and ever-weakening resolve to ensure the court’s integrity when faced with evidence of dysfunction and political interference; and the fading willingness of major donor states to provide funding and political support for core functions, as well as for victim support and representation, basic outreach, increased transparency, and archive preservation and accessibility.
Lastly, the world has changed dramatically since the Justice Initiative’s monitoring program began. There are new and emergent crises in the international justice field, including, for example, the situations in Syria, Myanmar, and with the ICC. Equally important, there are new problems, such as the COVID-19 pandemic, and dramatic new possibilities, including the struggle for racial justice and climate justice, that demand attention but bring hard choices about priorities and resources.
The Justice Initiative is grateful for the generous hospitality of the people of Cambodia for opening their arms to this monitoring project. We are also grateful to the officials within the ECCC, the UN, the donor community, and the Cambodian and international NGO community who supported our work, even when it made their lives difficult, because they were committed to the ECCC’s integrity. The Cambodian people’s demands for justice and accountability have, of course, not been fully met. We continue to hope that the remaining efforts of the ECCC can do more to satisfy their expectations as the court finalizes its work.
Information about ongoing developments at the court can be found on the ECCC website and at the Cambodia Tribunal Monitor website, sponsored by Northwestern Law and the Documentation Center of Cambodia.