Wednesday, June 15, 2011

The Khmer Rouge Tribunal in Cambodia Under Scrutiny

(Thanks to IntLawGrrls for inviting me to contribute this guest post)

The Open Society Justice Initiative released on June 14th a report calling upon the UN Secretary-General, Ban Ki-moon, to
Initiate an internal investigation by the United Nations Office of Internal Oversight Services (OIOS) into allegations that UN officials (a title which can include judges as well as other experts) have acted contrary to the code of conduct set out by the Secretary-General’s Bulletin of 2002 governing the status, basic rights, and duties of officials other than secretariat officials, and experts on mission.
In the event that this is not feasible, OSJI proposed that the UN Security-General take steps to
appoint an independent panel of experts comprised of current and/or former judicial officers of international standing to determine whether judicial misconduct has occurred.
The report is available here; here is the press release.
For several months, controversies have emerged and played out in the Cambodian media about the development, or rather lack thereof, of Case 003 and Case 004 at the Extraordinary Chambers in the Courts of Cambodia (ECCC) - the first serious effort to bring the law to bear on the horrendous crimes committed by leaders of the Khmer Rouge Regime (1975-1979). The issue was compounded over earlier accusations of corruptions and political interference. See IntLawGrrls' prior coverage of this issue here and here.
In September 2009, the Office of International Co-Prosecutor submitted (without the agreement from the National Co-Prosecutor Chea Leang, right) two Introductory Submissions opening investigation into Case 003/004 to the Co-Investigating Judges. The two submissions named five suspects who the Co-Prosecutor believed were responsible for the alleged crimes falling within the jurisdiction of the ECCC. The government has clearly opposed the effort, claiming that it could plunge the country into civil war. Chea Leang, the National Co-Prosecutor, has long argued that Case 003 did not fall under the ECCC’s jurisdiction of those bearing greatest responsibility.
On April 29, 2011, the ECCC’s co-investigating judges closed their investigation into Case 003 (Case 004 is still under investigation). With the view that the co-investigating judges prematurely stopped investigation without “genuine efforts” into the alleged crimes, the new International Co-Prosecutor Andrew Cayley issued a press statement on May 9, 2011 essentially asking the Co-investigating Judges for genuine investigation. This prompted the National Co-Investigating Prosecutors to issue a separate public statement reiterating her view that the case is not under the jurisdiction of the Court.
Since then, a soap opera has been playing out in the media. The Co-Investigating judges have issued at least six press statements denouncing the International Co-Prosecutor and the media as well issuing their decision that the original submissions made by the International Co-Prosecutor was not valid without the support of the National Co-Prosecutors. In addition, on June 11, 2011, the Cambodian Daily, a local non-profit news media in Cambodia, reported at least five international staff in the Co-Investigating Judges resigned over their disagreement with their superior handling of the investigation in Case003/004.
These latest very public acrimonious debates over Case 003/004 have overshadowed much progress made by the ECCC since its inception. On July 26, 2010, the ECCC judges convicted Kaing Guek Eav, alias Duch, the head of infamous prison Tuol Sleng (S21) where at least 12,200 Cambodians were imprisoned, tortured, and ultimately killed, of crimes against humanity and grave breaches of the 1949 Geneva Conventions. The judgment was an important milestone for the ECCC. A few months later, in September, the Co-Investigating Judges indicted four more suspects for crimes of genocide, crimes against humanity and war crimes, as well as homicide, torture and religious persecution, under the Cambodian Penal Code 1956: Ieng Sary, Khieu Samphan, Nuon Chea, and Ieng Thirith. In less than two weeks, June 27, the initial hearing for Case 002 will begin.
A recent survey conducted by UC Berkeley School of Law Human Rights Center (which I co-authored) shows that Cambodians, younger and older, are more aware and know more about the ECCC and the Khmer Rouge regime compared to two years earlier. Furthermore, their perceptions of the court improved between 2008 and late 2010, with more than a 10% increase in the proportion of people who believed the Court would help rebuild trust in Cambodia and promote national reconciliation, and an 8% increase in the proportion of people who believed the Court is neutral. A majority also reported that the Court had helped rebuild their trust in the national justice system – not a small accomplishment given the country’s culture of impunity.
No matter what the outcome is - whether case 003 and 004 will ever take place or not –transparency and engagement with the public are needed to explain the decisions being made and justice is being carried with the highest standard. Without this, justice will not be served, nor will it “be seen” to be served, a crucial element to deal with the past Khmer Rouge atrocities.

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