Recent Developments at Khmer Rouge Tribunal Draw Praise, Criticism
Amid recent developments, legal experts have both lauded and criticized the proceedings of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal established jointly by Cambodia and the United Nations to prosecute those most responsible for crimes against humanity and other atrocities committed by the Khmer Rouge in the 1970s. While welcoming progress that has included charges against a new defendant and testimony on the genocide charges against two senior officials, observers have also raised concerns about specific delays or inaction by the tribunal, as well as areas of weakness in its respect for due process. Similarly, in his visit to the country this week, United States Secretary of State John Kerry welcomed the ECCC’s contributions to accountability, while lamenting the delay in its creation. [VOA] This post provides an update on the recent developments in the ECCC’s cases and reviews the challenges facing the court.
Case 002/01 Appeal
In November 2015, the Supreme Court Chamber of the ECCC had intended to hear oral arguments concerning the Case 002/01 defendants’ appeals, in which they challenge the fairness of the trial proceedings and the Trial Chamber’s use of evidence. The tribunal suspended these hearings when Nuon Chea’s defense counsel refused to participate (at their client’s request), and they are scheduled to resume in February 2016. See Supreme Court Chamber, Order Scheduling the Resumption of the Appeal Hearing, 23 December 2015. The Supreme Court Chamber ordered the appointment of standby counsel to represent Nuon Chea in the proceedings, and Phat Pouv Seang, a former lawyer for deceased ECCC defendant Ieng Thirith, has agreed to represent him.
A recent report by Stanford University’s WSD HANDA Center for Human Rights and International Justice cited concerns associated with the trial process in the first case against Nuon Chea and Khieu Samphan. See David Cohen et al., A Well-Reasoned Opinion?: Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01) (2015). The report noted that the judgment was “poorly written” compared to other international tribunals; lacked a “thorough and balanced” analysis of the facts and legal issues; and suffered from a poor application of the law to the facts, including by not ensuring that the beyond a reasonable doubt standard had been satisfied with respect to assessing criminal liability. Additionally, the report discussed the controversial decision by the court to separate the case into smaller trials, which resulted in a confusing severance order and made the trial process more inefficient. The report also noted evidentiary concerns, particularly because the court admitted statements witnesses who were not subject to cross-examination. See id.
The findings of the report are consistent with the grounds for appeal raised by Chea’s defense counsel. The appeal argues among other things that the Trial Chamber was biased, which violated Chea’s right to an independent tribunal; Chea’s right to an effective defense was violated because defense counsel did not given the opportunity to question certain witnesses; the Trial Chamber’s decision was “insufficiently reasoned” because it failed to take note of certain arguments; and that Nuon Chea and Khieu Samphan were not properly informed of the charges against them in the chamber’s severance order. See Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, 3-4.
On August 7, 2014, the ECCC Trial Chamber convicted Chea, former chairman of the Democratic Kampuchea National Assembly and deputy secretary of the Communist Party of Kampuchea, and Samphan, former head of state of Democratic Kampuchea, of crimes against humanity and sentenced them to life in prison. See ECCC, Case 002/01; Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, 3-4.
This month, the ECCC Trial Chamber has continued to hear testimony concerning acts of genocide against Chan Muslims and ethnic Vietnamese individuals in the trial of Khieu Samphan and Nuon Chea in Case 002/02, amid challenges presented by the overlaps between this case and cases 003 and 004, in which the investigations are supposed to be confidential.
With respect to the killing of the Cham Muslims, five witnesses and three civil parties had provided testimony by the end of 2015. See Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, 2. On January 13, 2016 Math Sor, a Cham Muslim, testified that she had been captured with she was a teenager along with 30 other women by Khmer Rouge soldiers and tied in a house. She also recounted how some of the women had been raped. According to Sor, soldiers burned copies of the Koran and forced Muslims in her village to eat pork, cut their hair, and eat pork. [The Star] However, one former cadre denied knowledge of such actions by the Khmer Rouge soldiersf. See Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, 2.
Regarding the genocide of the ethnic Vietnamese, the chamber heard testimony from a Cambodian mobile-unit worker during the Khmer Rouge about the torture and executions of Vietnamese at Wat Khsach pagoda in Siem Reap province. Additionally, a Cambodian farmer and platoon chief testified about how battalions were ordered to provide information about the identities of the ethnic Vietnamese. The farmer also testified that he had seen corpses at Tuol Tatrong, a possible execution site. A Vietnamese civil party also testified about the executions of the ethnic Vietnamese. See id. at 2. Yesterday, the tribunal heard from a former Khmer Rouge official, Prum Sarat, who had worked under Case 003 defendant Meas Muth and with Khieu Samphan, regarding the regime’s attitude and policies toward the Vietnamese. [Cambodia Daily]
Defense attorneys expressed concern about the reliability of written witness testimony from individuals who do not appear in court and are not subject to cross-examination as well as testimony from civil parties who are not under oath. In response to these concerns about the right to a fair trial, the Trial Chamber is hearing arguments about the admissibility of certain evidence and giving the defense additional time to prepare its arguments. See id. at 2-3.
In the Closing Order for Case 002, Samphan and Chea were charged as senior officials who were allegedly responsible for genocide, crimes against humanity, forced marriage and rape of the members of these groups. See ECCC, Case 002/02. Trial hearings commenced on these charges on October 17, 2014 and evidence was first presented on January 8, 2015. See ECCC, Case 002/02. It is estimated that 100,000 to 500,000 Cham Muslims and 20,000 Vietnamese died during the Khmer Rouge regime. [The Star]
In a significant development last month, the ECCC charged Meas Muth, a former Khmer Rouge Navy commander, with several crimes, including genocide, crimes against humanity, and breaches of the Geneva Conventions of 1949 when he appeared voluntarily before the tribunal on December 14, 2015. [ECCC Press Release; Jurist]. Muth has been charged in absentia in March 2015 and arrest warrants had been issued for him. However, the Cambodian police refused to arrest him. [Jurist; International Justice Monitor] The charges against him remain under investigation. See ECCC, Meas Muth.
Charges Filed Against Yim Tith
A fourth suspect, Yim Tith, former acting secretary of the Northwest Zone during the Khmer Rouge regime, was charged on December 9, 2015 with crimes against humanity and genocide in the Case 004 investigation, which concerns alleged crimes against the Cham population in Kampong Cham, the Khmer Krom population in Takeo and Pursat, the East Zone evacuees, and purges of the Central and North-West Zone. Tith appeared voluntarily before the ECCC with his defense counsel for the reading of the charges last month. See ECCC, Case 004; Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, 5.
Judicial Investigation of Im Chaem Concluded
On December 18, 2015, the judicial investigation against Im Chaem was concluded. [ECCC: Im Chaem], Im Chaem was allegedly the secretary of Preah Net Preah District in the North-West Zone. The ECCC initiated its judicial investigation of Ms. Chaem on September 9, 2009 and had expanded the scope of the investigation several times, including after she was charged in absentia with crimes against humanity, including murder, imprisonment, and persecution based on political grounds in March 2015. The investigations into her codefendants, Ao An and Yim Tith, continue. [ECCC: Im Chaem],
Challenges Facing the ECCC
James Goldston, Director of the Open Society Justice Initiative, has recently written about the larger challenges faced by the ECCC. He remarked that because of the 27-year gap between the end of the of the Khmer Rouge regime in 1979 and the ECCC’s establishment in 2006, less evidence is available and few senior leaders of the Khmer Rouge are alive to face trial. [Open Democracy]
Additionally, funding crises have threatened to shut down the ECCC. The ECCC’s initial budget estimated that it would cost $50 million to fund the tribunal’s activities for just three years. However, this did not take into account the costs associated with identifying witnesses, providing witnesses with protection and psychological and social assistance, and the time it takes to investigate and proceed to trial. [Open Democracy]
Goldston also cited concerns about the lack of judicial independence and stated that there is insufficient political support to end judicial corruption. [Open Democracy]
The Extraordinary Chambers in the Courts of Cambodia
The ECCC, which was established in 2001, is a special Cambodian court designed to try senior leaders of Democratic Kampuchea and those believed to be most responsible for grave violations of national and international law during the period from April 17, 1975 to January 6, 1979. See ECCC, Introduction. Its subject matter jurisdiction includes the crime of genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and other crimes defined in Chapter II of the Law on the Establishment of the ECCC. Approximately 1.7 million people died as a result of the policies and actions of the Khmer Rouge, which included mass killings, torture, forced labor, and displacement. See ECCC, Introduction.
The ECCC is considered an internationalized, or hybrid, tribunal because it applies both domestic and international law and is supported by international staff through the United Nations Assistance to the Khmer Rouge Trials (UNAKRT). The tribunal was established by an agreement between Cambodia and the United Nations.