Tuesday, May 27, 2008

The Extraordinary Chambers in the Courts of Cambodia: Mise En Scène

It was a great pleasure to be back in Phnom Penh (right, Wat Phnom) last week to witness firsthand the proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC) with my colleague Ron Slye of Seattle University School of Law. (An earlier post discusses the substance of the hearings). Ron & I have worked on accountability for the Khmer Rouge since 1995. In that year, our law school received a grant from the U.S. Department of State to study the feasibility and desirability of staging an accounting for the massive crimes of the Khmer Rouge era (1975-79) pursuant to the 1994 Cambodia Genocide Justice Act. The Act called for the establishment of a documentation center, the Documentation Center of Cambodia (DC-Cam), which was founded and is still run by Youk Chhang (left in front of the then-empty ECCC). Ron & I had visited the site of the ECCC a few years ago, when it was largely empty. The site was “donated” by the Ministry of Defense, which still occupies buildings in the compound. At the time, the donation was highly controversial, as there were concerns that the military would attempt to influence trials or at least intimidate participants. This worry has largely dissipated. A bigger issue is the location of the ECCC—it is well out of town, and many NGOs (including DC-Cam) have begun bussing people to the site so that Cambodians can more easily observe the proceedings.

Ron & I attended the proceedings before the ECCC in our capacities as legal advisers to DC-Cam (staff at right, photo credit), a now independent Cambodian NGO dedicated to documenting the history and atrocities of the Khmer Rouge. DC-Cam’s objectives are the promotion of memory and justice, healing the wounds of the past, developing a sound rule of law, and preventing future human rights abuses in Cambodia and abroad. In our visit, we were accompanied by 50 people from various villages outside of Phnom Penh. Part of the work of DC-Cam is to conduct outreach in various parts of the country to educate people about the ECCC proceedings and enable them to participate by attending hearings, constituting themselves as civil parties, or filing complaints against particular defendants. DC-Cam hosted an information session in its office on Tuesday (above left) concerning the nature of the proceedings, the legal standards to be employed, and the various players, and then took the villagers to the Ieng Thirith hearing the next day.

After passing through security (left and below right), where we had to relinquish our cell phones and cameras, we proceeded to a small courtroom. The room seats only 14 members of the public. We were fortunate to be chosen as two of the 14 admitted into the hearing room itself. The larger courtroom is still a work in progress, but the hearing proceedings were broadcast on a screen there for members of the public and the NGO community (left—prior hearing depicted). The small courtroom contains three counsel tables: one for the co-Prosecutors, one for the Co-Defense Counsel, and one for Counsel for the Civil Parties. The defendant was already in the dock when we arrived. The members of the Pre-Trial Chamber (the chamber charged with adjudicating appeals of pre-trial detention orders) sit on a dais in the center of the room flanked by the parties (see photo below). Simultaneous translation is provided (with varying degrees of accuracy) in French, English and Khmer.

Prior to the entry of the judges, select members of the press were allowed in with their cameras. They immediately swarmed around the defendant, clicking furiously. She stared blankly ahead, as though she did not see the photographers. Next, the judges of the Pre-Trial Chamber entered, and the press took their photos as well. The press were dismissed, and everyone was seated. Each key moment was signaled by the ringing of a bell by the National Greffier (clerk). The hearing officially opened with the reading of the report of the proceedings by Hout Vuthy, one of the judges. Ieng Thirith, the defendant (left—photo credit), was invited to address the court and answer certain basic biographical questions propounded by Prak Simsan, the Presiding Judge. Pursuant to Rule 22-2 of the Internal Rules, Thirith’s Cambodian lawyer then moved the recognition of his co-counsel, Diana Ellis, a British barrister, as this was her first appearance before the Court.

The parties then made their formal observations, each lawyer speaking in his or her native tongue. At one point, Ellis proposed a 20 minute in camera hearing to discuss particular pieces of evidence regarding the accused. The judges retired for half an hour and ruled that the motion would be granted. The public was dismissed for another half an hour or so, and then the hearing resumed. After the Defense closed, the Co-Prosecutors and Counsel for the Civil Parties made their case in support of the Co-Investigating Judge’s Order for Provisional Detention. The substance of all these arguments is reviewed here. During the recess, we ate a delicious curry in the Court’s canteen and were reunited with several old friends, colleagues, and former students who now occupy various staff positions with the ECCC. At the close of the hearing, Thirith was returned to the small detention center that is located next to the court building.

An interesting feature of the ECCC is that each position is jointly held by a Cambodian and an “international.” There were a couple of instances during the hearing in which co-counsel subtly contradicted or disagreed with each other. One of the criticisms of the ECCC structure is that there is no obvious mechanism to resolve such disputes between co-counsel. The Co-Prosecutors and Co-Defense Counsel are likely to coordinate their positions among themselves over time, but this might be more difficult for the representatives of the civil parties. (There were 5 representatives present during the Thirith hearing).

For me, the highlight of the proceeding was seeing the be-robed members of the PTC enter the courtroom for the first time. The PTC is composed of five judges (right): three Cambodian and two “international” (one is British and the other Dutch). The Pre-Trial Chamber includes Hout Vuthy (below left), a Cambodian jurist. Vuthy was trained in Odessa, Russia and is on the faculty of Norton University (the oldest private university in Cambodia). He has also served as a prosecutor in Kandal Province and was appointed as a member of the Council for Legal and Judicial Reform by the Royal Government of Cambodia. Vuthy was a student of mine in 1995 and 1996 when I co-taught a course in Phnom Penh on International Criminal Law through DC-Cam. Vuthy was a brilliant participant, so it was no surprise when he was appointed to the ECCC. I exchanged smiles with Vuthy at one point, and after the hearing I received a message that he had seen me in the public gallery. One of the greatest sources of pride for a professor is seeing the success of a deserving student. With people of this caliber on the court, there is hope yet for justice for Cambodia.

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