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Truth and deception in Cambodian courtroom

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In Brief

Confrontation in and around courtrooms is nothing new. But current events at the Extraordinary Chambers in the Courts of Cambodia (ECCC) speak to a broader source of frustration for defence teams at this hybrid tribunal.

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For many, the key difficulty is balancing pernicious institutional and political realities while making sure the tribunal still delivers some benefit to Cambodian society. In the eyes of the defence, this approach has led to the tacit acceptance of irregularities during the trial itself.

So while the August 2014 conviction of former Khmer Rouge leaders Nuon Chea and Khieu Samphan for crimes against humanity was widely regarded as an overdue success for the ECCC, trial proceedings were marked by the defence teams’ successive attempts to disqualify judges for their alleged judicial bias and repeated accusations of political interference. Appeals were lodged by the accused in December 2014, and these matters are sure to resurface in Case 002/02.

Many of the current challenges facing the ECCC stem from issues associated with procedural fairness. And these will not be easily overcome. The ECCC sits within an unfavourable domestic context which creates a clear channel for executive influence over its work. Many senior members of the government are themselves former Khmer Rouge, with a strong interest in keeping proceedings within established boundaries. The ECCC was also formed within Cambodia’s existing court structure and employs a majority of domestic judges in each chamber, in a country ranked 156 out of 175 states in the 2014 Corruption Perceptions Index.

Further compounding this problem is the tribunal’s association with the Supreme Council of Magistracy, the body responsible for appointing, promoting and disciplining national judges and prosecutors. The Council’s membership includes the Cambodian minister of justice, highlighting the level of government influence on the fate of Cambodia’s judiciary. Two other members of the committee — the ECCC’s national co-prosecutor and national co-investigating judge — have, in turn, refused to participate in further preparations for two upcoming trials, in line with the government’s stated desire not to see them proceed.

In Case 002/01 specifically, Nuon Chea’s defence counsel have been highly critical of the national judges’ refusal to summons Heng Samrin, the president of Cambodia’s National Assembly and a senior politician for the past three decades. Following six applications to have him called before the tribunal, the national judges meekly suggested that it would ‘lead the Trial Chamber into a situation full of difficulties’. Yet Heng Samrin is thought to be the most senior surviving military officer to have participated in the evacuation of Phnom Penh in April 1975, one of the main subjects of the trial.

Without the freedom to summons relevant witnesses it is unclear how the ECCC will develop a full understanding of events under the Khmer Rouge and ensure the precise assignment of responsibility. The government’s ability to limit testimony should also temper suggestions that the trial has fostered more open discussion about Cambodia’s past.

Added to this burden is a unique legal situation, whereby the original statement of charges in Case 002 was subsequently divided into smaller trials, in part so as to expedite proceedings. But the defence teams have argued that the process of unravelling such a complex case has not been successful and that conclusions drawn in Case 002/01 will effectively reverse the burden of proof for elements of Case 002/02. Evidentiary hearings for this second portion of charges were due to begin in October 2014, but defence boycotts delayed their commencement until January 2015. It’s a rocky start to what could be the last trial before the ECCC.

In the end, it was perhaps inevitable that supporters of the tribunal would look elsewhere for redeeming features, seeking to balance difficulties in the courtroom with the possibility of providing some other benefit to the local population. Victims’ advocates, for example, have pushed for a stronger court-backed reparation scheme that is capable of implementing long-term community initiatives. Recently funded projects include the provision of testimonial therapy and educational resources relating to the history of Democratic Kampuchea. It is hoped that legal skills will be transferred from international to national staff. And there is also the need to establish a historical record of events between 1975 and 1979, especially in a country where this part of its history has been mostly absent from the school curriculum. But taking such an ‘on balance’ approach to the success of the ECCC is flawed — it implies that building a veritable history and strong legal legacy do not also depend on fair and independent trials.

The defence teams will have great difficulty advancing their cause within the current institutional and political context — but it should not be so readily sacrificed. The tribunal’s extra-judicial initiatives cannot compensate for less-than-perfect trials, and may also be undermined by this same context. Ultimately, the ECCC promised international standards of justice, while tying its success to a compromising political environment — it’s a cautionary tale and a lesson in what not to do for future hybrid tribunals.

Madeleine Willis is a former intern at the Extraordinary Chambers in the Courts of Cambodia and a graduate of the Australian National University.

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