Big News From the ECCC

Co-Investigating Judge Siegfried Blunk (right) of Germany has resigned from the Extraordinary Chambers in the Courts of Cambodia. His articulated reason: government interference with the investigation of new cases.
The resignation comes a week after Human Rights Watch called for the resignation of Blunk and his Cambodian counterpart, You Bunleng (also right). The group argued that the two have "failed to conduct genuine, impartial and effective investigations," and as a result have "egregiously violated" their legal and judicial duties such that Cambodians would have "no hope" of justice while they remained at the tribunal.

The Statute of the ECCC as negotiated by the United Nations and the Government of Cambodia grants a majority of key posts to Cambodian nationals, but mandates that many major decisions be made by a supermajority. This requires the assent of at least one international judge. It had long been argued that given the complex structure of the ECCC, the tribunal would only be as strong as its weakest international judge. The current controversy suggested that this dubious distinction belonged to Judge Blunk.
We've blogged before about the controversy at the ECCC over Cases 003 and 004.
Case 003 concerns air force commander, Sou Met, and navy commander, Meas Muth (see interview here).
Case 004 involves three Khmer Rouge regional officials—Aom An, Yim Tith, and Im Chem (below left)—accused of committing genocide and crimes against humanity in their areas of command. The then-international Co-Prosecutor, Robert Petit (Canada), submitted the five suspects’ cases to the co-investigating judges on September 7, 2009, over the objection of his Cambodian counterpart, Chea Leang (see our discussion here and here). Although all three of the Cambodian judges on the Pre-Trial Chamber sided with Leang, the supermajority formula ensured that the investigation proceeded, although this decision came after the resignation of Petit (see our discussion here).
At issue now is whether the Co-Investigating judges adequately investigated those cases, given that they apparently did not interview the suspects or other key witnesses, or conduct any crime site investigations.
Under the circumstances, many anticipated that the Closing Orders would recommend against prosecution, on the theory that the individuals subject to investigation were not the "most responsible" for crimes perpetrated during the Khmer Rouge era, a limitation of the ECCC's personal jurisdiction.
Following the formal close of the investigations on April 29, 2011, the bulk of the U.N. investigating staff quit in protest, on the ground that the investigation represented a failure of justice. Elements in the Cambodian government—including Prime Minister Hun Sen; Khieu Kanharith, Cambodia's information minister; and Hor Namhong, Cambodia's Foreign Minister—openly expressed resistance to trials beyond the four accused regime leaders already in custody.
Although elements of civil society have been very vocal with respect to this growing scandal, the United Nations has been publicly, and many believe privately, silent.
The reserve Co-investigating Judge, Laurent Kasper-Ansermet (Switzerland) will replace Blunk. It remains to be seen whether the ECCC can put this scandal behind it and move forward expeditiously with the remaining trials and appeals.

In other news, the ECCC will be conducting phased trials in Case 002 focused on particular alleged international crimes in order to expedite the proceedings. (The severance order is available here).
The first trial will consider crimes against humanity charges involving the forced movement of the population in the early days of the Khmer Rouge regime. Other crimes against humanity and genocide charges involving detention centers and religious and other persecution will be considered in a subsequent proceeding. The Trial Chamber has justified its approach on the ground that it is following the chronological order of the Closing Order issued by the Co-Investigating Judges. The Co-Prosecutors have accepted the need for severance in principle, but have argued that the parties should be consulted in determining which crimes should take priority, especially given the advanced age of the defendants. In particular, the Co-Prosecutors indicated that delaying consideration of crimes committed at security centers and execution sites would mask the "massive scale of the crimes and the extreme seriousness of the alleged criminal behaviour of the accused." Counsel for the civil parties have also objected, arguing that this prioritization of charges will deny many accredited civil parties the right to seek reparations for torture and acts of discrimination.
We still await an outcome of the tribunal's fitness hearings. It is expected, however, that Ieng Thirith—wife of co-defendant Ieng Sary—will be declared unfit to stand trial.

(Cross posted at the Cambodia Tribunal Monitor).

Clinton in Cambodia

U.S. Secretary of State Hillary Rodham Clinton recently visited Cambodia as part of an Asia tour and gave remarks in support of the accountability process underway there.

After visiting Toul Sleng detention center with a group of students (at left, photo credit), Secretary Clinton remarked in a town-hall style meeting:

A country that is able to confront its past is a country that can overcome it. ... Countries that are held prisoner to their past can never break those chains and build the kind of future that their children deserve. ... Although I am well aware the work of the tribunal is painful, it is necessary to ensure a lasting peace.


See here for her remarks after her visit to Toul Sleng.


As we've blogged before, the future of the ECCC remains uncertain. Case 002 against regime leaders is proceeding apace, but Cases 003 and 004, against mid-level former Khmer Rouge, are controversial. The Cambodian Prime Minister, Hun Sen, has indicated he does not support these cases, ostensibly because they will plunge the country back into civil war. His remarks and the intransigence of the Cambodian Co-Prosecutor and Co-Investigating Judge in moving forward on the two cases have given rise to concerns about political manipulation of the ECCC. The assumption is that individuals under investigation are political allies of the Prime Minister, who recently told U.N. Secretary General Ban Ki Moon that he should close down the U.N.'s human rights field office because it is interfering in Cambodian internal affairs.




The above photo at left is of Secretary Clinton with Youk Chhang, founder/director of the Documentation Center of Cambodia. The photo at right is of the family (grandchild, daughter, and son-in-law) of Chan Kin Srun, one of the detainees killed at Toul Sleng in 1978 being given a photograph of Secretary Clinton looking at Chan Kin Srun's intake portrait at Toul Sleng. The Khmer Rouge meticulously documented the identity of each detainee before interrogating and then executing him or her.

Kudos to Secretary Clinton for keeping accountability high on her agenda in the region.

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.

Cambodia Update

We've blogged before on the controversy at the Extraordinary Chambers in the Courts of Cambodia between the two Co-Prosecutors over whether to charge additional suspects with international crimes committed during the Khmer Rouge era (see here and here). Following a recent ruling of the Pre-Trial Chamber, which failed to achieve a majority to block further investigations, the Acting International Co-Prosecutor, William Smith (right), has now filed with the Co-Investigating judges two new Introductory Submissions.
Introductory Submissions are confidential to protect the integrity of the investigation, the identity of the victims and witnesses, and the presumption of innocence of the suspects. The Internal Rules do, however, allow the Co-Prosecutors to provide the public with a short summary of their submissions. What we've learned is that the Co-Prosecutors have recommended the investigation and prosecution of five additional suspects for 40 distinct factual situations of murder, torture, unlawful detention, forced labour, and persecution. The Second Introductory Submission contains allegations that, if proved, would constitute crimes against humanity, grave breaches of the Geneva Conventions, and violations of the 1956 Cambodian Penal Code. The Third Submission contains genocide allegations, but no war crimes allegations. (See our prior post on finding genocide in Cambodia).
These new Submissions specifically reference the theory of joint criminal enterprise (JCE), no doubt in an effort to ensure that the Closing Order (indictment) includes this form of responsibility. As we've blogged before, the Duch Closing Order does not include JCE allegations; the investigation into Duch's criminal liability did not focus on potential JCE liability, because the Co-Prosecutors failed to specifically reference JCE liability in their Submission to the Co-Investigating Judges. An appeal by the Co-Prosecutors on this point failed.
The Acting International Co-Prosecutor has indicated that he has no plans to conduct any further preliminary investigations into additional suspects at the ECCC.
Cambodian Prime Minister Hun Sen (left) is not happy. He has consistently argued against any expansion of the ECCC's investigations beyond the five suspects already in custody on the ground that it would spark civil unrest. At a forum on the release of new census figures, Hun Sen is quoted as saying:

If you want a tribunal, but you don't want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?

Hun Sen's repeated involvement in this issue has given rise to concerns among human rights groups that the executive branch is attempting to interfere with the work of the Extraordinary Chambers.

Executive meddling in the ECCC

Just as the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) are getting into the meat of their work, with the prosecutors' introductory submissions filed last month, the executive has transferred Co-Investigating Judge You Bunleng to the position of President of the Cambodian Court of Appeal. Yesterday, the UN Special Representative of the Secretary General for Human Rights in Cambodia Yash Ghai and the Special Rapporteur on the Independence of Judges and Lawyers Leandro Despouy slammed the executive branch for this move, stating that "the replacement of the Appeal Court President was done at the request of the executive branch of the government in contravention of the separation of executive and judicial powers specified in the Constitution." (The Constitution empowers only the Supreme Council of Magistracy to transfer judges.) This move sends several concerning messages. First, it says to the other Cambodian judges in the ECCC that they are under the control of the executive, and can be transferred at the whim of Prime Minister Hun Sen. Second, it tells the tribunal staff, national and international, that the executive can delay the process whenever it pleases -- a real concern for the ECCC, whose three-year mandate is ticking past. Perhaps most importantly, this move signals to the rest of the Cambodian judiciary and the world that the Cambodian government is all too willing to deny the "essential protections provided to judges, including guarantees of tenure, that enable judges to administer, and be seen to administer justice efficiently, impartially and fairly, free of political interference."