Friday, June 11, 2010

A Hybrid Mess in Cambodia

A flurry of competing press announcements in Cambodia has left this IntLawGrrl scratching her head and wondering about the viability of the hybrid tribunal model.
► This past Monday, June 7, according to the Cambodia Daily, Lars Olsen, the UN Legal Affairs spokesperson for the Extraordinary Chambers in the Courts of Cambodia, announced that investigations had begun on five new suspects whose prosecutions the government has opposed.
► According to Olsen, last Friday, June 4, the Cambodian Co-Investigating Judge You Bunleng and the International Co-Investigating Judge Marcel Lemonde issued letters rogatory asking the police to collect evidence to be used in cases 003 and 004. This investigation will bring the total number of Khmer Rouge suspects before the ECCC to ten.
Despite a 2009 survey by the Documentation Center of Cambodia finding that nearly 60 percent of Cambodians favor these expanded investigations, Cambodian Prime Minister Hun Sen has repeatedly stated that the tribunal should not prosecute more than five suspects. Sen, himself a former Khmer Rouge cadre, claims that further investigations risk rupturing the peace agreement reached in the 1990s and could even cause a new civil war. Cambodian Co-Prosecutor Chea Leng has hewed the party line, also opposing additional prosecutions; Robert Petit, the International Co-Prosecutor, pushed the cases through despite opposition from Leng and Cambodian pretrial judges. In particular, Petit claimed that arguments about national stability were inconsistent with the ECCC's mandate of accountability, and were not properly before the court.
And here's where it starts to get complicated:
► Late Tuesday night (June 8), Cambodian Co-Investigating Judge You Bunleng (pictured left) issued a press statement disassociating himself from the Cambodia Daily news report of his participation in these additional investigations. Apparently the press release referred questions only to the ECCC's Cambodian spokespeople and avoided any mention of the UN spokespeople. Indeed, on Tuesday evening, UN legal affairs spokesperson Olsen denied any knowledge of Bunleng's press statement.
► In an effort to quell negative rumors, the Co-Investigating Judges issued a press release Wednesday morning (June 9). The release includes internal communications between the judges over the timing of these new investigations, and thus provides fascinating insight into the inner workings of the ECCC.
In a memo dated June 2, International Co-Investigating Judge Lemonde (pictured right) sent an ultimatum to his Cambodian counterpart, Bunleng, expressing concern that since investigations in case 002 had been completed, the investigators were being paid to do nothing. Lemonde noted that the investigators stood ready to undertake investigative missions in the new cases, and that he had sent the letters rogatory to Bunleng for his signature three weeks earlier. Describing these signatures as an "extremely simple" task, Lemonde gave Bunleng until noon on June 4 either to complete them or to face the negative consequences of an official report of the judges' disagreement on whether to proceed.
Bunleng responded with a memo on Tuesday June 8, noting that he had spent some time reflecting on the issues raised by cases 003 and 004, including general principles of justice, the principles used to establish the ECCC, the actual context of Cambodian society, and the impact of these efforts on case 002, which was moving forward smoothly. This assessment led him to the conclusion that the time was ripe to move forward on the new cases, and he signed the letters rogatory accordingly. But, Bunleng noted, after "closer and deeper" consideration of the question, he decided that it was not the right time to move forward on the new investigation. Moreover, he suggested that the closing of the files of case 002 will take some time, and that the new investigations should not take place until that task is completed. Bunleng included with his memo the letters rogatory signed by Lemonde but with Bunleng's signature crossed out.
The fracture that began with Petit's decision to prosecute has created a gaping canyon right down the center of the ECCC, with the internationals lining up on one side and the Cambodians on the other.
While both sides present compelling arguments, the fear remains that Hun Sen's thumb on the scale reflects self-interested politics rather than advocacy of national interests. That worry is compounded by the results of the preference survey described above.
In any case, the ostensibly hybrid court's failure to reach consensus on these important decisions does not bode well for its effectiveness as a mechanism of justice. Future experiments in hybridity, and in international criminal law more generally, must confront and address opposing viewpoints and potential political spoilers within the structure of new accountability mechanisms. If they do not, they may face similarly damaging schisms.

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