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Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide

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The Extraordinary Chambers in the Courts of Cambodia

Part of the book series: International Criminal Justice Series ((ICJS,volume 6))

Abstract

The ‘Cambodian model’ of the ECCC—a domestic court with international participation and assistance—emerged through years of tough negotiations between the Cambodian government and the UN, after the massive crimes had been ignored by the international community for 20 years. This contested history provided the backdrop to the work of the Court and to the judicial and non-judicial challenges it has faced, giving alternate prisms through which to assess its achievements and failings.

The author is an Adviser to the Royal Government of Cambodia.

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Notes

  1. 1.

    Kiernan 1996; Closing Order, Nuon Chea and others (002/19–09–2007/ECCC-D427), Co-Investigating Judges, 15 September 2010.

  2. 2.

    For interpretations of this extenuated process, see Fawthrop and Jarvis 2004; Scheffer 2012, at 341–405.

  3. 3.

    Chandler 2000; Panh 2003.

  4. 4.

    The photographic and documentary archives of Tuol Sleng Genocide Museum were inscribed on UNESCO’s Memory of the World International Register in 2009. Details of the collection are available at http://www.unesco.org/new/en/communication-and-information/flagship-project-activities/memory-of-the-world/register/full-list-of-registered-heritage/registered-heritage-page-8/tuol-sleng-genocide-museum-archives/#c188357 (visited 15 June 2015).

  5. 5.

    The Documentation Centre of Cambodia, ‘Mapping Project: 1995-Present’, available at http://www.d.dccam.org/Projects/Maps/Mapping.htm (visited 15 June 2015). From 1995 to 2004 Yale University’s Cambodian Genocide Program and the Documentation Centre of Cambodia recorded 388 burial sites, 196 prisons and 81 memorials.

  6. 6.

    Amer 1989, especially at 24–39.

  7. 7.

    Infra ‘2.2. United Nations acknowledgment’.

  8. 8.

    Fawthrop and Jarvis 2004, at 40–51.

  9. 9.

    While widely termed genocide, both in common parlance and in academic, government and even legal circles for the past 35 years, controversy still rages as to whether or to what extent the Genocide Convention of 1948 applies. The Genocide Convention has generally been interpreted (at least until recent cases in Argentina and Bangladesh) as applying to acts committed on one protected group by another group, and therefore, it has been argued, does not apply in Cambodia’s case. The Group of Experts established by the Secretary-General of the UN in 1997, while concluding that ‘evidence suggests the need for prosecutors to investigate the commission of genocide against the Cham, Vietnamese and other minority groups, and the Buddhist monkhood’, took an agnostic position on genocide against the Khmer national group, stating that ‘any tribunal will have to address this question should Khmer Rouge officials be charged with genocide against [them]’. The charge of genocide against the Muslim Cham and Vietnamese is part of the ECCC’s Case 002/02, the Initial Hearing of which took place on 30 July 2014. See also M. Vianney-Liaud, Chap. 10 in this Volume.

  10. 10.

    Fawthrop and Jarvis 2004, at 70–107. In February 2015 Prime Minister Hun Sen expressed his continuing anger at that pressure from the international community not to include the word ‘genocide’ in the Paris Peace Agreements in impromptu comments made during his opening keynote address at the conference on “The Responsibility to Protect at 10: Progress, Challenges and Opportunities in the Asia Pacific”, Sofitel, Phnom Penh, Cambodia 26–27 February 2015 (http://cnv.org.kh/?p=4130).

  11. 11.

    Agreement on a Comprehensive Political Settlement of the Cambodian Conflict, 23 October 1991, 31 International Legal Materials 183.

  12. 12.

    Findlay 1995; Widyono 2008.

  13. 13.

    See Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135, UN Doc. A/53/850-S/1999/231, 16 March 1999 (hereafter Report of the Group of Experts), § 5.

  14. 14.

    GA Res. 52/135, 27 February 1998 on the report of the Third Committee, Add. 2 on the Situation of Human Rights in Cambodia, refers in its preamble to ‘international crimes, such as acts of genocide and crimes against humanity’ (A/52/644/Add.2). It was adopted by the Third Committee on 12 December 1997 and by the General Assembly on 27 February 1998. § 15 ‘Endorses the comments of the Special Representative that the most serious human rights violations in Cambodia in recent history have been committed by the Khmer Rouge and that their crimes, including the taking and killing of hostages, have continued to the present, and notes with concern that no Khmer Rouge leader has been brought to account for his crimes’; and §16. ‘Requests the Secretary-General to examine the request by the Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law, including the possibility of the appointment, by the Secretary-General, of a group of experts to evaluate the existing evidence and propose further measures, as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability’.

  15. 15.

    Report of the Group of Experts, supra note 13.

  16. 16.

    Fawthrop and Jarvis 2004, at 113–133 and Scheffer 2012, at 381–385.

  17. 17.

    Fawthrop and Jarvis 2004, at 155–188.

  18. 18.

    GA Res. 57/228, 27 February 2003 on the report of the Third Committee (A/57/556/Add.2 and Corr.1-3).

  19. 19.

    Available at http://www.eccc.gov.kh/en/documents/legal/agreement-between-united-nations-and-royal-government-cambodia-concerning-prosecution (visited 15 June 2015).

  20. 20.

    GA Res. 57/228B, 22 May 2003 on the report of the Third Committee (A/57/806).

  21. 21.

    Article 1 ECCC Law (emphasis added). The details of the structure and procedures of the ECCC in the following paragraphs are also taken from the ECCC Law.

  22. 22.

    It should be noted that no indictments have been made relating to this offence.

  23. 23.

    It should be noted that no indictments have been made relating to this offence.

  24. 24.

    Article 14 new ECCC Law.

  25. 25.

    Articles 20 new and 23 ECCC Law.

  26. 26.

    Article 39 ECCC Law.

  27. 27.

    Article 40 new ECCC Law.

  28. 28.

    Article 30 ECCC Law.

  29. 29.

    Article 44 ECCC Law.

  30. 30.

    Article 11 ECCC Agreement.

  31. 31.

    Decision on Appeal Against Provisional Detention of Kaing Guek Eav (Duch), Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-C5/45), Pre-Trial Chamber, 3 December 2007, §§ 18–19.

  32. 32.

    Decision on Request for Release, Kaing Guek Eav (Duch) (001/18-7-2007/ECCC-E39/5), Trial Chamber, 15 June 2009, § 10.

  33. 33.

    Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-F28), Supreme Court Chamber, 3 February 2012 (hereafter Duch Appeal Judgment), § 393.

  34. 34.

    First Introductory Submission, (ECCC-D3), Co-Prosecutors, 18 July 2007; see also the public statement of the Co-Prosecutors, 18 July 2007.

  35. 35.

    Separation Order, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-D18), Co-Investigating Judges, 19 September 2007.

  36. 36.

    Judgment, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E188), Trial Chamber, 26 July 2010.

  37. 37.

    Duch Appeal Judgment, supra note 33.

  38. 38.

    Decision on the Defence Preliminary Objection Concerning the Statute of limitations of Domestic Crimes, Kaing Guek Eav (Duch) (001/18-07-2007/ECCC-E187), Trial Chamber, 26 July 2010.

  39. 39.

    Closing Order, supra note 1. On appeal, the Pre-Trial Chamber ordered that the Closing Order be amended with a specification for the requirement of the existence of a link between the underlying acts of crimes against humanity and an armed conflict, and that rape could charged not as a separate crime, but considered as ‘other inhumane acts’ within the legal definition of crimes against humanity, see Decision on Ieng Sary’s Appeal against the Closing Order, Nuon Chea and others (002/19-09-2007/ECCC-D427/1/26), Pre-Trial Chamber, 13 January 2011.

  40. 40.

    Report of the Group of Experts, supra note 11, § 65, stating: ‘As for atrocities committed against the general Cambodian population, some commentators have asserted that the Khmer Rouge committed genocide against the Khmer national group, intending to destroy a part of it. The Khmer people of Cambodia do constitute a national group within the meaning of the Convention. However, whether the Khmer Rouge committed genocide with respect to part of the Khmer national group turns on complex interpretive issues, especially concerning the Khmer Rouge’s intent with respect to its non-minority-group victims. The Group does not take a position on this issue, but believes that any tribunal will have to address this question should Khmer Rouge officials be charged with genocide against the Khmer national group.’ See also supra note 9.

  41. 41.

    6th request for investigative actions concerning the charge of Genocide against the Khmer nationals, Nuon Chea and others (002/19-09-2007/ECCC-D349), Civil Party Lawyers, 10 February 2010. For Argentina, see Ferreira 2013, at 5–19; Feierstein 2012, 2014. In Bangladesh, the International Crimes Tribunals are currently considering such qualification of crimes.

  42. 42.

    Combined Order on Co-Prosecutors’ Two Requests for Investigative Action Regarding Khmer Krom and Mass Executions in Bakan District (Pursat) and Civil Parties Request For Supplementary Investigations Regarding Genocide of the Khmer Krom & the Vietnamese, Nuon Chea and others (002/19-09-2007/ECCC-D250/3/3), Co-Investigating Judges, 13 January 2010.

  43. 43.

    Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chamber’s Decision Concerning the Scope of Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E163/5/1/13), Supreme Court Chamber, 8 February 2013; Decision on Immediate Appeals of the Trial Chamber’s Second Decision on Severance of Case 002, Nuon Chea and others (002/19-09-2007/ECCC-E284/417), Supreme Court Chamber, 23 July 2013; Trial Chamber Memo to the Director of Administration, Nuon Chea and others, (002/19-09-2007-ECCC-E301/4), Trial Chamber, 20 December 2013.

  44. 44.

    Judgment, Nuon Chea and others (002/19-09-2007/ECC-E313), Trial Chamber, 7 August 2014.

  45. 45.

    Position on Remaining Preliminary Objections raised by the Ieng Sary Defence Team, Nuon Chea and others (002/19-09-2007/ECCC-E306/1), Defence, 20 May 2014, and Conclusions de la Defense de M. Khieu Samphan sur les exceptions preliminaires sur lesquelles la Chambre n’a pas encore statue, Nuon Chea and others (002/19-09-2007/ECCC-E306/2), Defence, 20 May 2014.

  46. 46.

    International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to Internal Rule 71(2), (Pre-Trial Chamber Disagreement No. 001/18-11-2007/ECCC), International Co-Prosecutor, 3 December 2008; National Co-Prosecutor’s Response to the International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to Internal Rule 71(2), (Pre-Trial Chamber Disagreement No. 001/18-11-2007/ECCC), National Co-Prosecutor, 29 December 2008, (publicly redacted versions).

  47. 47.

    C. Sokha and J. O’Toole, ‘Hun Sen to Ban Ki-moon: Case 002 last trial at ECCC’, Phnom Penh Post (27 October 2010), citing a briefing to the press by Foreign Minister Hor Namhong on the meeting between Prime Minister Hun Sen and Secretary-General Ban Ki-moon and a statement by the Minister for Information, Khieu Kanharith: ‘The purpose of forming the court was to seek justice for victims and guarantee peace and stability in society. […] If the court walks farther than that, it will fall.’

  48. 48.

    Considerations of the Pre-Trial Chamber on the Disagreement between the Co-Prosecutors pursuant to Internal Rule 71 (publicly redacted version), (Disagreement No. 001/18-11-2008/ECCC), Pre-Trial Chamber, 18 August 2009.

  49. 49.

    Statements by the ECCC International Co-Investigating Judge, 3 and 27 March 2015 (http://www.eccc.gov.kh/en/articles).

  50. 50.

    M. Lee, Deputy Director of Administration in ECCC Press Conference, 9 February 2006 (as noted by the author, then ECCC Chief of Public Affairs).

  51. 51.

    Article 33 new ECCC Law; Article 12(1) ECCC Agreement.

  52. 52.

    A ‘Draft Internal Procedures and Regulations’, developed by Dr Gregory Stanton for and with the Cambodian Government Task Force for the Khmer Rouge Trials, was presented to the Judicial Strategic Planning and Development Workshop held in early July 2006. This draft made provisions for victims to apply to participate in the hearings (Article 89), to appoint legal representatives, even envisaging the probable need for common legal representation for groups of victims and for legal assistance for representation (Article 90) and to claim reparations, including remedies such as restitution, compensation and rehabilitation (Article 94). See also An Introduction to the Khmer Rouge Trials (Phnom Penh: Secretariat for the Task Force for the Khmer Rouge Trials, 2004).

  53. 53.

    Rule 23(12) ECCC Internal Rules, adopted 7 June 2007.

  54. 54.

    Judgment, Kaing Guek Eav alias Duch, supra note 36, § 682–683.

  55. 55.

    Rule 23quinquies ECCC Internal Rules (Rev. 6), adopted on 9 February 2009 and amended on 17 September 2010.

  56. 56.

    Rule 12bis(3) ECCC Internal Rules (Rev.6), adopted on 9 February 2009 and amended on 17 September 2010.

  57. 57.

    Article 35 new ECCC Law; Articles 13(1) and 17 ECCC Agreement.

  58. 58.

    Rules 12ter and 23(3) and 23ter ECCC Internal Rules (Rev. 5), adopted on 9 February 2009 and amended on 9 February 2010.

  59. 59.

    Judgment, Nuon Chea and others, supra note 44.

  60. 60.

    Civil Party Lead Co-Lawyers’ Response to the Trial Chamber’s Memorandum (E218/7/2) Concerning Reparations Projects for Civil Parties in Case 002/01, Nuon Chea and others (002/19-09-2007/ECCC-E218/7/3), Civil Party Lead Co-Lawyers, 23 August 2013, wherein the Civil-Party Lawyers outline thirteen proposed projects.

  61. 61.

    Wierda and Triolo 2012, at 155.

  62. 62.

    See Sanusi 2013, at 472.

  63. 63.

    GA Res. 68/247B, 9 April 2014.

  64. 64.

    In a compromise between calls for equality of salaries and the difficulty of securing sufficient funds, it was agreed during the negotiations in 2004 that national staff in professional grades would receive 50 % of the salary of their international counterparts according to the UN pay scale of 2004, while non-professional staff were to follow the pay scales set for Cambodia by the United Nations Development Programme (UNDP) and this formula was subsequently endorsed in several reviews, see Deloitte Touche Tohmatsu, ‘Report of the Special HRM Review’ (24 March 2008) at 3.

  65. 65.

    Secretary-General’s Report to the General Assembly, UN Doc. A/59/432/Add.1, 12 October 2004, § 14b.

  66. 66.

    Summary of expenditure and donor contributions as of 31 December 2014, ECCC Budget and Finance Offices, available at http://www.eccc.gov.kh/en/about-eccc/finances/summary-expenditure-and-donor-contributions-31-january-2015 (visited 15 June 2015).

  67. 67.

    In October 2006 OSJI wrote to donors raising concerns about ‘hiring practices’, kicking off a campaign of unspecific and unsubstantiated allegations that were reported repeatedly in the Wall Street Journal. See for example J.A. Hall, ‘Yet another UN scandal’, Wall Street Journal (21 September 2007); ‘Corruption complaints at the Khmer Rouge War Crimes tribunal’, Wall Street Journal Asia (2 October 2008); J.A. Hall, ‘A UN fiasco in Cambodia’, Wall Street Journal (5 October 2011) and elsewhere in the press, continuing to dog the ECCC until today.

  68. 68.

    Other hybrid courts preceding the ECCC include the Special Panel for Serious Crimes within the Dili District Court of East Timor (established by the United Nations Transitional Administration in East Timor in 2000) and the Special Court for Sierra Leone (established by in 2003 on the basis of an Agreement between the United Nations and the Government of Sierra Leone), while the United Nations Mission in Kosovo began appointing international judges to the Kosovar district courts in 2000.

  69. 69.

    Agreement between the Government of the Republic of Senegal and the African Union on the Establishment of Extraordinary African Chambers within the Senegalese Judicial System, 22 August 2012.

  70. 70.

    International Republican Institute, ‘Survey of Cambodian Public Opinion’, (2 February 2010), available at http://www.iri.org/news-events-press-center/news/iri-releases-latest-survey-cambodian-public-opinion (visited 15 June 2015).

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  1. Phnom Penh, Cambodia

    Helen Jarvis

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    Simon M. Meisenberg

  2. Faculty of Law, Franz von Liszt Institut, Giessen, Germany

    Ignaz Stegmiller

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Jarvis, H. (2016). Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide. In: Meisenberg, S., Stegmiller, I. (eds) The Extraordinary Chambers in the Courts of Cambodia. International Criminal Justice Series, vol 6. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-105-0_2

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