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					                                                                  A publication of the Open Society Justice Initiative, Spring 2006




Contents                                      The Extraordinary Chambers
Foreword
James A. Goldston                         1   Thirty years after the Khmer Rouge took power—
History                                       and following years of negotiations between
The Political Origins of the Tribunal     7   the UN and the Cambodian government—the
Craig Etcheson
                                              Extraordinary Chambers are finally preparing to try
Perspectives
The Cambodian Government                 25
                                              the remaining Khmer Rouge leaders. This issue
Sok An                                        of Justice Initiatives examines the Extraordinary
Human Rights Watch                       32   Chambers and the challenges of securing justice
Dinah PoKempner
A Personal Account                       47
                                              for the victims of the Khmer Rouge.
Socheata Pouev

Players
The Defendants                           53
Steve Heder                                   FOREWORD
Victims and Witnesses
Susana SáCouto
                                        60
                                              An Extraordinary
The Investigation and Prosecution
Kelly Dawn Askin
                                         72
                                              Experiment in
Challenges
Prosecuting Genocide                     85
                                              Transitional Justice
Patricia M. Wald
                                              James A. Goldston
Marrying International                  97
and Local Justice                             The Extraordinary Chambers in the Courts of Cambodia
Caitlin Reiger
                                              (EC)—the focus of this issue of Justice Initiatives—is an
Likely Impact on Cambodian              109   unusual experiment in transitional justice that stands at the
Courts and Society
Interviews with Thun Saray,
                                              juncture of two distinct, if overlapping, historical narratives.
Son Chhay, Ouk Vandeth                        At one level, the EC marks a milestone in Cambodia’s tortured
Outreach: A Key to Success              117
                                              experience of violence and suffering—the first serious effort
Tracey Gurd                                   to bring the law to bear, however incompletely, on the crimes
The Importance of Monitoring            130
                                              wrought by the Khmer Rouge more than a quarter century
Richard J. Rogers                             ago. At the same time, the EC is the latest in a series of tri-
                                              bunals—starting with Nuremberg and culminating most
Alternatives                                  recently with the International Criminal Court—intended to
Transitional Justice Mechanisms         139   secure legal accountability for mass atrocities.
Laura McGrew
                                                 It is not yet known how the EC will respond to the many
Restorative Justice                     151
                                              demands of its varied constituencies. But one thing is clear:
Kek Gallabru
                                              the EC’s performance will have a major impact on both
                                              Cambodia and the future of international justice.
     The Extraordinary Chambers



         On the one hand, things may go         greater detail by several contributors
     well. The EC may produce effective,        to this volume, Cold War politics and
     thorough, and fair investigations and      the competing interests of several
     trials of a small group of persons who     states impeded progress throughout
     the evidence convincingly demon-           the 1980s. Painstaking negotiations
     strates were most responsible, in a        among the UN, various member
     manner which transparently engages         states, and Phnom Penh over much of
     victims, the media, and the general        the ensuing decade reflected a mixture
     public. In such a case, the EC would       of—depending on the government
     contribute to a sense of justice for the   in question—ambivalence, conflicting
     Khmer Rouge crimes, support broader        priorities, and/or active hostility to
                                                a tribunal.
                                                    The result is a court that is saddled
          One thing is clear: the EC’s          with a number of structural impedi-
                                                ments. These provide ample basis
performance will have a major impact            for reasoned skepticism, if not down-
    on both Cambodia and the future             right pessimism, about how it will ulti-
                                                mately function. The “Extraordinary
             of international justice.
                                                Chambers” is extraordinary in several
                                                respects. Although a number of factors
                                                distinguish the EC from its principal
     legal reform efforts in Cambodia, and      hybrid predecessors, three stand out
     help confirm mixed national/interna-       in underscoring the challenges ahead.
     tional courts as a model for the future.       Perhaps most significantly, the
         Alternatively, if things go poorly,    EC is the first hybrid tribunal in
     the investigations may be marred by        which international judges and prose-
     incompetence or political interference;    cutors do not constitute a majority.
     the trials may fail to comply with         Notwithstanding the institutional
     international due process standards;       contortions that have been devised
     and the proceedings may not be open        to accommodate this anomaly, it has
     to monitoring and participation by         enormous implications for the EC’s
     civil society. These shortcomings          operation—many of them potentially
     would almost certainly set back the        negative. To a greater extent than with
     cause of justice for Khmer Rouge           the other principal hybrid courts
     victims, hinder other efforts to           (in East Timor, Kosovo, and Sierra
     improve Cambodia’s legal capacity,         Leone), the Cambodian government
     and place a question mark across the       has repeatedly demonstrated its
     trajectory of further attempts to root     determination that the EC remain a
     international justice principles in        domestic tribunal staffed primarily
     domestic legal systems.                    by Cambodians. There are, of course,
         The creation of a court to try         good reasons why mixed tribunals
     Khmer Rouge crimes has been a              should have substantial national com-
     long time coming. As recounted in          ponents. But where, as in Cambodia,


      2                                                                      Open Society
                                                                       Foreword



both the quality and impartiality of            In light of these obstacles, it
judicial decision making have long          perhaps bears emphasis that both
been in question, ceding too much           the Cambodian government and
authority to the national system risks      the international community share
compromising the entire process.            responsibility to see that the EC
    Second, the length of time that has     succeeds. Having fought tenaciously to
transpired since the crimes at issue—       ensure that the EC would be part of the
longer than three decades, in some          Cambodian courts, the government in
cases—far exceeds that for any compa-       Phnom Penh now must demonstrate
rable proceeding. The other hybrid          its bona fides—from the quality of its
tribunals have all taken place in the       appointments to its support for judicial
immediate aftermath of the conflicts        decisions based on facts and law rather
which gave rise to them. For obvious
reasons, Cambodia’s long delay com-
plicates the challenge of evidence          Both the Cambodian government and
preservation—from human memory
to chain of custody—so essential            the international community share
to proving guilt. It also threatens         responsibility to see that the EC succeeds
to deprive the court of its most likely,
and consequential, defendants. Pol
Pot died in 1998. His former col-
leagues are aging fast.                     than political whim. And while the
    Third, unlike analogous mecha-          crimes to be judged are those of
nisms in other countries, the EC is         the Khmer Rouge, the international
for now the only official venue in          community as a whole has an interest
Cambodia where claims for truth and         in seeing to it that genocide does not
justice about Khmer Rouge crimes            go unpunished. Moreover, the role of
may be mediated. Apart from a limited       the world’s major powers in, first, help-
exception in the early 1980s, no seri-      ing foster the conditions for Khmer
ous attempt has been made to establish      Rouge rule in Cambodia, then sustain-
a truth commission or similar process       ing a Khmer Rouge seat at the
of structured, fact-based dialogue          UN, impels meaningful international
involving both government and civil         involvement.
society. Nor have there been any purely         To date, no government has ful-
domestic prosecutions or trials, beyond     filled this responsibility. In recent
the clearly substandard proceedings         months, the Cambodian government
convened in the immediate aftermath         has offered contradictory signals about
of the Khmer Rouge’s fall. Thus, with       the EC’s funding and timing even as it
all its deficiencies, the EC will for the   has lashed out against the very bod-
foreseeable future be the exclusive         ies—independent courts and human
vehicle for addressing the weighty and      rights NGOs—so crucial to the EC’s
numerous expectations of Khmer              efforts. In January 2006, foreign
Rouge victims and their loved ones.         governments, UN officials, and inter-


Justice Initiative                                                                  3
          The Extraordinary Chambers



          national observers condemned what          as it is unnecessary. To the contrary,
          some termed “the harshest political        it is possible for the EC to perform
          crackdown in years.”1                      credibly. But it will take strong,
             At the same time, on the whole,         vigilant backing from the GIS as
          international donor governments have       well as the Cambodian government.
          adopted a posture of acquiescence          As detailed in this volume, many
          to official ineptitude, powergrabbing,     issues require immediate attention.
          and duplicitousness with respect to        Among the highest priorities are
          the EC that has consistently under-        the following:
          mined broader judicial reform in
                                                      • Clear Rules of Procedure and
                                                        Evidence. The EC must develop
                                                        rules of procedure and evidence
As we embark upon a new stage in the life               in a timely and transparent fash-
                                                        ion that benefits from the input
   of the EC, the Justice Initiative remains
                                                        of concerned NGOs and inde-
      committed to its effective operation.             pendent legal experts.
                                                      • Code of Ethics. The EC must
                                                        adopt and enforce a code of
          Cambodia. The Group of Interested             ethics regulating the conduct of
          States (GIS)—a body representing              judges, prosecutors, and other
          those governments with financial              staff.
          and/or policy interests in the EC—has       • Transcription. The proceedings
          done remarkably little to ensure that         should be recorded and pre-
          its members’ money is well spent.             served in complete and accurate,
          To date, the GIS has not established
                                                        word-for-word transcripts, to
          a monitoring mechanism, published
                                                        facilitate appellate review and
          benchmarks of performance it expects
                                                        public debate.
          the EC to meet, or even declared pub-
          licly its commitment to ensure that the     • I n t e r p r e t a t i o n / Tr a n s l a t i o n .
          EC adhere to fundamental standards            Quality interpreters and transla-
          of international human rights and             tors must be identified and
          humanitarian law. To take one exam-           adequately trained in legal and
          ple, the Cambodian government’s               other relevant terminology, as
          failure to disclose the criteria for EC       well as in the principles and
          judicial selection, despite its pledge        techniques of translation, and
          to be developing them as long ago             employed by an EC language
          as May 2005, has met with deadening           service that has a well-defined,
          silence from the GIS.                         autonomous position in the
              By consistently refusing to assume        tribunal’s structure.
          responsibility for its success, all par-    • Investigative Resources. Adequate
          ties to the EC risk condemning it             provision must be made to
          to failure. This is as unfortunate            ensure that EC co-prosecutors


          4                                                                                    Open Society
                                                                   Foreword



    and co-investigating judges have       victim/witness unit should over-
    sufficient and skilled investiga-      see the provision of information,
    tive staff and resources to inves-     services, and protection to vic-
    tigate complex historical crimes.      tims and witnesses.
  • Public Outreach. The EC must          • Accounting. An effective account-
    keep tribunal operations strictly       ing system must be put in place
    separate from military opera-           to ensure that EC funds are
    tions, facilitate access by             properly used, tracked, and
    Cambodian and international             accounted for. Once the tribunal
    media, undertake public educa-          is up and running, and on a
    tion programs commencing well           continuing basis, the EC budget
    before the trials begin, and            should be re-examined in light
    establish off-site media offices to     of its evolving needs and
    provide reliable information            progress in the investigations
    including via audio and/or video        and trials.
    broadcast.                            • Legacy. The EC should develop
  • Training.    Once     selected,         and carry out a plan to maximize
    Cambodian and international             the positive impact of its opera-
    judges, prosecutors, and other          tion on the national court sys-
    staff will require training in          tem, the bar, and the general
    Cambodian and international             public. The plan should address
    legal procedures on a continu-          physical legacy, professional
    ing basis.                              development, and legal reform.
  • Defense. The EC must clarify          • Management and Oversight. In
    that each accused person has the        order to carry out meaningful
    right to competent counsel of           oversight with respect to each
    choice, including a qualified           of these important matters, the
    international attorney. In addi-        GIS must establish a coordinat-
    tion, defense counsel must enjoy        ing mechanism, together with
    the capacity and resources to           the Cambodian government and
    carry out effective investigations,     the United Nations, to oversee
    conduct effective cross-examina-        the non-judicial policy, financial,
    tions of witnesses, and mount a         and administrative issues con-
    meaningful defense. A code of           fronting the EC. The GIS coordi-
    ethics is needed for defense            nating mechanism should have
    counsel.                                capacity to act both in Phnom
  • Victims and Witnesses. The EC           Penh and in New York. The
    must establish and implement            experience of the management
    procedures to ensure that wit-          committee for the Special Court
    nesses may testify voluntarily          for Sierra Leone (SCSL) should
    and without undue concern               be considered in developing a
    for their well-being. A separate        model appropriate to Cambodia.


Justice Initiative                                                                5
The Extraordinary Chambers



               *******                              Initiative remains committed to its
                                                    effective operation. The months to
Since its inception, the Justice
                                                    come will require critical, intelligent
Initiative has devoted substantial time
                                                    engagement with this fragile, prob-
and resources to helping the EC
                                                    lematic, yet important institution by a
secure funding and become estab-
                                                    broad range of actors in government
lished as an institution. We have done
                                                    and civil society.
so for several reasons: the scale of the
                                                       The repeated failure of govern-
crimes, the absence of accountability
                                                    ments over the past century to halt
to date, the unusual detachment of
                                                    genocide wherever it has emerged,
traditional international justice allies,
                                                    even though they have had it within
and the rapidly receding timeline for
                                                    their power to act, has been rightly
possible action. Throughout, we have
                                                    condemned. It would be no less
remained keenly aware of the EC’s
                                                    shameful—and damning to the cause
flaws and of the distinct possibility
                                                    of legal accountability for mass
that its primary sponsors might
                                                    crimes—to allow the principal archi-
ultimately fail to provide adequate
                                                    tects of Cambodia’s genocide to walk
political, economic, or administrative
                                                    free, when the possibility of justice is
support. As we embark upon a new
                                                    within reach.
stage in the life of the EC, the Justice

Notes

James A. Goldston is executive director of the Open Society Justice Initiative.
1. Seth Mydans, “Cambodian Leader Cracks Down in Bid to Solidify Power,” International Herald
Tribune, Jan. 9, 2006, A3.




6                                                                                 Open Society
                                                                        History



HISTORY
A “Fair and Public Trial”:
A Political History of the
Extraordinary Chambers
The Extraordinary Chambers are the        struck many as signaling the end
result of years of complex and tenden-    of the Khmer Rouge. After 30 years
tious negotiations between the            of war, the political leadership of
UN and the Cambodian government.          the Khmer Rouge appeared finally
Craig Etcheson reviews their history.     vanquished. The surrender of the
                                          movement’s top political leaders
The many unique aspects of the
                                          launched a new round of dialogue
Khmer Rouge Tribunal—its unusual          about Khmer Rouge accountability
mix of local and international staff at   for war crimes, genocide, and other
every level, including co-prosecutors     crimes against humanity.
and co-investigating judges, and a
                                             By this time, the ruling Cambodian
majority of Cambodian judges, as well
                                          People’s Party had demonstrated a
as its “supermajority” decision-mak-
                                          long-standing rhetorical commitment
ing mechanism—can only be under-          to holding the perpetrators of the
stood through its political history.      Khmer Rouge genocide accountable.
The Extraordinary Chambers (EC)           In 1995, an international conference
in the Courts of Cambodia, as the         on genocide justice was held in
Khmer Rouge Tribunal is now official-     Phnom Penh, Cambodia’s capital.
ly known, was arrived at following        Hun Sen participated, and publicly
seven long years of difficult negotia-    declared support for trying the leaders,
tion between the Cambodian govern-        arguing that “this is not about politics,
ment and the United Nations.              it is about justice.”2 On June 21,
    On December 25, 1978, Hun Sen         1997, the then co-prime ministers
commanded exiled Cambodian armed          of Cambodia, First Prime Minister
forces invading Cambodia from             Prince Norodom Ranariddh and
Vietnam to overthrow the Khmer            Second Prime Minister Hun Sen, sent
Rouge regime.1 Exactly 20 years later     a letter to the UN Secretary-General
to the day, on December 25, 1998, the     requesting international assistance in
two remaining senior Khmer Rouge          bringing the Khmer Rouge to justice.3
political leaders, Nuon Chea and             Just before the leaders’ surrender,
Khieu Samphan, formally surren-           a UN Group of Experts, appointed
dered to Hun Sen, by then prime min-      by Secretary-General Kofi Annan in
ister of Cambodia. This event, follow-    response to the Cambodian request,
ing on the 1998 death of Pol Pot,         had visited Cambodia, to investigate


Justice Initiative                                                                7
        The Extraordinary Chambers



        Khmer Rouge culpability for war           again changed course, now declaring
        crimes, genocide, and other crimes        that Cambodia would hold a domestic
        against humanity. However, the prime      trial for Ta Mok alone. As Hor Nam
        minister appeared to have had a           Hong expressed it, “When you try
        change of heart the moment the UN         Ta Mok, it will not be only him, but
        experts left. Hun Sen greeted the         the whole Khmer Rouge system, the
        fallen rebel leaders by declaring that    whole top leadership.”7
        Cambodia should “dig a hole and bury          In their report, meanwhile, the
        the past.”4                               Group of Experts recommended that
                                                  the United Nations model a tribunal
                                                  for Cambodia on the existing ad hoc
                                                  international tribunals for the former
 Before the Group of Experts’ report was          Yugoslavia and Rwanda, situating
presented to Kofi Annan, the Cambodian            it near, but not in, Cambodia, and
                                                  limiting personal jurisdiction to those
government had already decided against
                                                  “most responsible” for serious viola-
             its likely recommendations.          tions of international humanitarian
                                                  law, and temporal jurisdiction to the
                                                  period of the Khmer Rouge regime
        The tribunal’s origins:                   from April 17, 1975, to January 7,
        a tale of two plans                       1979.8 They also recommended a trust
        Before the Group of Experts’ report was   fund for reparations to victims of the
        presented to UN Secretary-General         Khmer Rouge, broadcasts of the tribu-
        Kofi Annan on February 18, 1999, the      nal sessions to the Cambodian people,
        Cambodian government had already          and consideration of some form of
        decided against its likely recommenda-    truth commission as an adjunct to, but
        tions.5 They instead initiated a series   not a replacement for, the judicial
        of confusing and apparently contradic-    process.
        tory changes in position. First, the          When he transmitted the Report
        government publicly discussed the         of the UN Group of Experts to the
        possibility of establishing some form     UN Security Council and General
        of truth commission as an alternative     Assembly, along with news of the
        to a tribunal for the Khmer Rouge.        Cambodian government’s newest
        Foreign Minister Hor Nam Hong sent        plan to try only Ta Mok, the Secretary-
        an inquiry to Bishop Desmond Tutu         General wrote that in his view
        in South Africa to ask about possible     “the trial of a single Khmer Rouge
        assistance in creating an institution     military leader which would leave the
        for Cambodia modeled on South             entire political leadership unpunished
        Africa’s Truth and Reconciliation         would not serve the cause of justice
        Commission.6 Almost immediately,          and accountability.”9 With prodding
        however, on March 6, 1999, Khmer          from the Secretary-General’s special
        Rouge military chief Ta Mok was           representative for human rights in
        captured, and the government once         Cambodia, Thomas Hammarberg,


        8                                                                    Open Society
                                                                         History



the Cambodian government agreed             law, but with the crime of genocide
to entertain a new initiative from          redefined to fit precisely the crimes
the United Nations. The UN’s Office         of the Khmer Rouge (mainly by
of Legal Affairs labored through the        extending it to include crimes against
spring of 1999 to define a new model        political and economic groups). The
of “international” justice: a “mixed”       draft further specified that this new
tribunal which would be established         definition would be retroactive.
under Cambodian domestic law and                In response, the UN delegation
be seated in Phnom Penh, but which          noted that the Secretary-General’s
would still be dominated by interna-        requirement that any Khmer Rouge
tional personnel in order to ensure         tribunal should be “international in
that impartial justice would be done.       character”12 could not be met simply
    Yet when negotiations began in          by arbitrarily grafting a few foreign
August 1999, Sok An, Cambodia’s
minister in charge of the Office of         The UN labored to define a new model of
Council of Ministers, presented the
UN delegation with Cambodia’s own           “international” justice: a “mixed” tribunal
draft charter for a Khmer Rouge tribu-      established under Cambodian domestic
nal.10 The plan presented by Sok An
proposed a fundamentally national,          law, but able to ensure impartial justice.
rather than international, tribunal.
Under the draft charter, the court of       lawyers onto existing Cambodian judi-
first instance for prosecution of the       cial institutions. UN Assistant
Khmer Rouge would be the existing           Secretary for Legal Affairs Ralph
Phnom Penh Municipal Court. There           Zacklin also objected to the retroactive
would be two levels of appeals, also        definition of genocide. He argued that
within existing Cambodian judicial          any Khmer Rouge perpetrators who
structures. A majority of personnel at      might evade conviction on charges of
all levels of the judicial process would    genocide due to the Genocide
be Cambodians, with the rest “interna-      Convention’s narrow wording could be
tionals.” All legal personnel, interna-     convicted of crimes against humanity
tional as well as domestic, would be        for the same acts.13 The UN presented
appointed by the Cambodian Supreme          the Cambodians with its own draft
Council of the Magistracy. Not every-       charter for a Khmer Rouge tribunal.14
one was happy with this formula,            The UN plan called for one trial cham-
as the independence of both the             ber and one appeals chamber, with
Phnom Penh Municipal Court and              a majority of international personnel
the Supreme Council is question-            in both.
able—both have been accused of polit-          The significant gap between these
ical taint.11 In addition to the proposed   two positions was not bridged in the
institutional structures, Sok An’s          August negotiations,15 during which
draft incorporated the Genocide             Cambodian Tribunal Task Force
Convention into Cambodian domestic          Chairman Sok An suggested to Ralph


Justice Initiative                                                                9
     The Extraordinary Chambers



     Zacklin that the two sides work from a     three “options of participation or
     single text, rather than from differing    non-participation” for the UN in a
     UN and Cambodian versions, in order        Cambodian tribunal: to provide legal
     to avoid possible confusion. Zacklin       personnel, including nominating
     ignored this request, as did the UN’s      international judges and prosecutors;
     next negotiator, Legal Counsel Hans        to provide legal expertise, but no
     Corell, after him.16 As a result, during   personnel; or to end its involvement
     the coming years of negotiations,          altogether.19 After this terse meeting,20
     the two sides were rarely talking about    a long waiting period ensued.
     the same text.                                 The Cambodian government’s will-
                                                ingness to go it alone appears to have
                                                been bolstered also by a desire for
  U.S. mediation managed to achieve             a national process to generate recon-
a compromise that would permit the              ciliation and unity. On September 20,
                                                after meeting with Kofi Annan,
 international community to endorse             Hun Sen addressed the UN General
           Cambodia’s tribunal plans.           Assembly:21
                                                 We are firmly resolved to do what-
     The case for a                              ever is needed to provide an open
     Cambodia-based tribunal                     trial of those responsible for geno-
                                                 cidal crimes in the country in the
     In a September 1999 meeting with
                                                 past. In holding this trial we will
     UN Secretary-General Kofi Annan,
                                                 carefully balance, on the one hand,
     Prime Minister Hun Sen offered
                                                 the need for providing justice to
     two reasons for Cambodia’s attach-
                                                 our people who were victims of
     ment to a primarily national court.
                                                 this genocidal regime and to final-
     The first was legal: under the
                                                 ly put behind us the dark chapter
     Genocide Convention, Cambodia had
                                                 of our national history with, on the
     the primary obligation to try crimes
                                                 other hand, the paramount need
     within its jurisdiction.17 The second
                                                 for continued national reconcilia-
     was the long-standing tolerance of
                                                 tion and safeguarding the hard-
     the UN and its members toward
                                                 won peace, as well as national
     the Khmer Rouge. The international
                                                 independence and sovereignty,
     community had “allowed [the Khmer
                                                 which we value the most.
     Rouge] to sit at the UN while they
     committed genocide from 1975-1979.            Ominously, the Cambodian govern-
     This group continued to occupy the         ment position also received the sup-
     seat until 1982 and from 1982 to 1993      port of high-level Khmer Rouge.
     was part of a tripartite coalition         On September 2, Ieng Sary released a
     government and legal party of the          statement from his quasi-autonomous
     Supreme Council of Cambodia under          zone in western Cambodia, declaring
     the Paris Peace Accord.”18 Prime           that he “supports resolutely the [Royal
     Minister Hun Sen then described            Government’s] idea and stance on


     10                                                                      Open Society
                                                                         History



defending national sovereignty by           Cambodian government managed to
taking for priority the existing national   achieve a compromise that would
tribunal in collaboration with foreign      permit the international community
judges and prosecutors whose number         to endorse Cambodia’s tribunal plans.
is lesser than those from Cambodia.”22      In December 1999, the Cambodian
Ieng Sary had been the Khmer Rouge          government delivered a dramatically
deputy prime minister and foreign           revised new draft of the proposed
minister, and significant evidence has      tribunal law to the UN. The new draft
been amassed suggesting that he fed         incorporated both the suggestions
victims into the Khmer Rouge killing        of the UN’s Legal Affairs Office and
machine.23 Thus, Ieng Sary would be
a prime target of any independent
genocide prosecutor and his endorse-        One observer described the
ment of the government plan raised
questions about Hun Sen’s good faith        situation at this point as a
in his negotiations with the UN.            “lose-lose” scenario for Cambodia.
    One observer described the situa-
tion at this point as a “lose-lose”
scenario for Cambodia.24 On the one         the compromises reached with the
hand, any step back from the strong         United States’ mediators. References
stand on Cambodia’s sovereignty and         were eliminated to retroactive applica-
capacity to conduct the trials would        tion of law, and a proper definition of
constitute a serious loss of face. The      genocide was incorporated.27 Basic due
opposition Sam Rainsy party had been        process protections for defendants,
arguing all along that an international-    previously absent, were now included.
ly controlled tribunal alone would              The proposed “special” tribunal
suffice. On the other hand, if the          would consist of a court of first
Cambodian government were to                instance and an appeals chamber, both
proceed with a national tribunal for        situated outside existing Cambodian
the Khmer Rouge, little or no interna-      judicial institutions. Cambodian
tional funding or expertise would be        jurists would comprise a majority
forthcoming, and the outcomes would         of the personnel at all levels of the
be vulnerable to criticism. Cambodia’s      court, but at least one international
judicial underdevelopment had creat-        jurist would have to concur with the
ed a general presumption that fair          decision of the majority in order
trials on this politically fraught issue    for any decision to stand—a system
would be impossible.25                      known as “supermajority.” The prose-
                                            cution would include investigating
United States mediation                     magistrates and prosecutors, with one
                                            Cambodian and one international
When negotiations between Cambodia
                                            cooperating in each institution.
and the UN stalled in September 1999,
the United States attempted to bridge           The UN responded positively to the
the gap.26 U.S. mediation with the          proposal, but continued to seek some


Justice Initiative                                                               11
    The Extraordinary Chambers



    mechanism to ensure that judicial           international standards.”30 Corell
    independence would be obtained in           insisted the UN could accept a
    the proceedings. The new draft              Cambodian majority in a court operat-
    addressed the issue through rhetorical      ing by “supermajority,” but only if
    fiat, rather than proposing concrete        the international prosecutor was fully
    institutional arrangements. Article 12      independent and did not require
    of the new draft law stated, “The           agreement with a Cambodian co-pros-
    judges shall be independent in per-         ecutor. The Cambodians refused
    formance of their functions and shall       point blank. Requiring agreement
    not accept or seek instructions from        between the Cambodian and interna-
    any government or any other source.”        tional prosecutor could potentially
                                                allow the government to thwart prose-
                                                cution of certain former members of
      A compromise was proposed                 the Khmer Rouge, a case in point
                                                being Ieng Sary, the former foreign
by U.S. Senator John Kerry, who had
                                                minister and deputy prime minister
taken a long interest in Cambodia’s             of Democratic Kampuchea. Prime
             national reconciliation.           Minister Hun Sen has repeatedly and
                                                publicly declared that Ieng Sary
                                                should be protected from prosecution
    But merely asserting that the judges        by the Extraordinary Chambers.31
    shall be independent does not make          Again, American intervention broke
    them independent in fact. It is possi-      the impasse.
    ble that, having had little or no experi-       A compromise formula was pro-
    ence of judicial independence, the          posed by U.S. Senator John Kerry,
    Cambodian government did not fully          who knew Hun Sen personally
    appreciate the issue or the importance      and had taken a long interest in
    attached to it by the UN and other          Cambodia’s national reconciliation.32
    observers. Concerns about political         His compromise reapplied the
    interference in the tribunal were only      so-called supermajority principle to
    increased every time the prime minis-       potential disputes between co-investi-
    ter made peremptory declarations            gating magistrates or co-prosecutors.
    about how many and which suspects           Where the Cambodians and interna-
    would be vulnerable to prosecution.28       tionals disagreed over whether to
        Early in January 2000, the United       investigate or prosecute a particular
    Nations responded to the latest             person, the dispute would be referred
    Cambodian draft with a “non-paper”          to a specially constituted panel of
    of legal concerns.29 UN Under-              three Cambodian and two foreign
    Secretary-General for Legal Affairs         judges drawn from tribunal chambers,
    Hans Corell led a team of negotiators       who would decide the issue based
    to Phnom Penh in March to ensure            on the supermajority voting principle.
    the judicial mechanism would “reach         Unless four of five judges disagreed,



    12                                                                     Open Society
                                                                       History



the disputed investigation or prose-       a deadline of the autumn convening
cution would go forward. The               of the UN General Assembly to pass
Cambodian negotiators had proposed         the draft law in precisely the form
a similar special panel of three foreign   “agreed” in the July negotiations.35
judges and two Cambodians, except
that supermajority agreement would         The Cambodian parliament acts
be needed for a prosecution to go          The Cambodian government missed
ahead—which would allow any two            the UN’s deadline, finally moving the
Cambodian members of the panel to          draft legislation to the parliament on
block a prosecution. Kerry eventually
persuaded Hun Sen to abandon this
transparent attempt at political control
over prosecutions.                         To put Cambodian defense lawyers—the
    By the end of the July 2000 negoti-    great majority of whom have limited legal
ations, there seemed to be some
                                           knowledge of international crimes—up
confusion as to what exactly had
been agreed. The UN laid out the           against an experienced international
arrangements on the prosecution            prosecutor would be manifestly unfair.
and judiciary in a Memorandum
of Understanding, that also included
the agreed terms of the tribunal’s         November 20, 2000. The parliamen-
temporal jurisdiction (April 17, 1975,     tary Legislative Commission reviewed
to January 7, 1979) and potential          the proposed legislation, and made
indictees (senior Khmer Rouge and          a few changes. One of these was
those “responsible for the most            significant. On the grounds that
serious violations”). However, Sok An      only members of the Cambodian Bar
insisted that the government could not     Association have the right to practice
formally agree to any arrangement          law in Cambodia, the commission
with the UN until the relevant text        modified the text in such a way that
had been passed by parliament and          foreign defense attorneys would be
adopted as law. Correll argued that        prohibited from directly addressing
it was standard international practice     the tribunal; they would be limited to
for a government first to agree with       advising Cambodian attorneys. This
the UN and then submit the agree-          change did not account for the role
ment to parliament.33 But, as one          of foreign prosecutors and judges, and
member of the Sok An’s Task Force          violated the UN’s requirement that
put it, the Cambodians were “adamant       defendants in the tribunal must be
that the National Assembly [would]         permitted to select defense counsel
not just rubber-stamp something            of their choice. To put Cambodian
the government has signed off on with      defense lawyers—the great majority
the UN.”34 The UN laid down a mark-        of whom have limited legal knowledge
er giving the Cambodian government         of international crimes—up against



Justice Initiative                                                             13
The Extraordinary Chambers



an experienced international prosecu-      minority” on the bench of the court
tor would be manifestly unfair, and        (otherwise designated as the “super-
a violation of defendants’ rights          majority”); 3) to allow a foreign
under the International Covenant on        co-prosecutor and a foreign co-investi-
Civil and Political Rights, to which       gating magistrate; 4) to implement
Cambodia is a party.                       a “Pre-Trial Chamber” mechanism,
   Once vetted by the Legislative          by which disputes between co-prose-
Commission, the draft law was sent to      cutors or co-investigating magistrates
the full National Assembly for debate      would be resolved; and 5) not to
on December 29, 2000. Tribunal Task        request any amnesties or pardons.
Force Chairman Sok An briefed the              The assembly debate was long and
                                           lively.37 Finance Minister Keat Chhon,
                                           a member of the government team
                                           defending the proposed law (and
   The Cambodian government                former ranking advisor to Pol Pot),
 had not in fact provided a copy           succinctly summarized the case for
                                           the law by answering his own rhetori-
   of their final draft to the UN.
                                           cal question, as someone who had
                                           lived near the heart of the terror. “For
                                           what?” he asked. “For the next day,
                                           [that] there will be no terror of killing,
assembly at great length, discussing
                                           on the land of this country or other
the history of international tribunals,
                                           countries . . . . ” He argued for unani-
the principles which guided the
                                           mous approval of the measure on the
government during the drafting of
                                           grounds that “This is for memory and
the law (emphasizing the search for
                                           justice. In practice, we are strengthen-
justice, the importance of maintaining
                                           ing peace, national agreement and
peace, political stability, and national
                                           national reconciliation, transforming
unity, and respect for Cambodia’s
national sovereignty), the history of      and developing our country . . . . ” On
the international negotiations leading     January 2, 2001, the draft was unani-
up to the draft law, and the “major        mously passed with all 92 members
compromises” that, he asserted, the        present signifying approval; 30 mem-
government had made in (purported-         bers were absent from parliament
ly) reaching agreement with the UN. 36     that day, including the president of the
Minister Sok An told the members of        National Assembly, Prince Norodom
parliament that the government had         Ranariddh.
made five major concessions or com-            Although the Cambodian govern-
promises in the course of the negotia-     ment was shepherding through parlia-
tions. These were the agreements 1)        ment a bill which had supposedly
to include foreign jurists in the          been carefully negotiated with the
Cambodian court system; 2) to permit       United Nations, the government had
what the minister called a “blocking       not in fact provided a copy of their


14                                                                       Open Society
                                                                         History



final draft to the UN. The United          that the court would proceed under
Nations did not obtain a copy until        “existing procedures in force,” mean-
January 3, the day after it was passed     ing Cambodian criminal procedure,
by the National Assembly. Six days         but that these could be modified,
later, Hans Corell wrote to Sok An to      “if necessary,” by reference to interna-
raise a number of “matters of concern”     tional rules of procedure. However,
in the law as passed, arguing that         the version of the law passed by
these concerns should “be taken into       the parliament added the phrase,
account at the Senate stage of the         “if there are lacunae in these existing
discussion of the law, since this may      procedures,” to that formulation.
be the last opportunity to make adjust-    This change seemed to suggest that
ments to the law before it is finally
adopted and promulgated.”38
    Serious issues raised by Corell con-
cerned the power to appoint foreign        The draft tribunal law the UN believed
personnel to the tribunal, amnesty,        had been agreed upon was not the
defense counsel, and the rules of
procedure for the tribunal.39 Language
                                           one that the Cambodians were
requiring UN input or control over         pushing through parliament.
the appointment and replacement
of international personnel, including
judges, had disappeared from the
adopted law. Corell insisted it must       the tribunal might proceed contrary
                                           to international judicial standards, so
be reinserted. A second area of
                                           long as procedures contrary to interna-
contention was amnesties. The UN’s
                                           tional practices were enshrined in
July 7 proposed draft of the tribunal
                                           domestic legislation or existed on the
law stated that the government would
                                           books as administrative regulations.
not request an amnesty or pardon
                                           This provision gave rise to a fear at the
from Cambodia’s king for any person
                                           UN that “adherence to international
indicted by the tribunal, and that
                                           standards” would not be a feature of
previous amnesties would be no bar
                                           the Khmer Rouge tribunal.
to prosecution. The law as passed by
the Cambodian parliament dropped              The consequences of the early fail-
                                           ure to agree on a single working
the second half of this formulation.
                                           text were increasingly clear. The draft
This question, which was deemed
                                           tribunal law the UN believed had
absolutely central by the UN, primari-
                                           been agreed upon was not the same
ly concerned Ieng Sary, who had been
                                           as the one that the Cambodians
granted an amnesty.40 The accused
                                           were pushing through parliament.
right to counsel of their choice was
                                           The UN had neglected to assign
a third issue. A fourth concerned
                                           a responsible UN officer to remain
the rules of procedure to be adopted
                                           in Phnom Penh for the duration of the
for the conduct of the tribunal. The
                                           process to stay closely engaged with
UN’s July 7 draft tribunal law stated


Justice Initiative                                                                15
        The Extraordinary Chambers



        Sok An’s Tribunal Task Force. The          United Nations awaited translations of
        resulting confusion about divergent        the law,48 and it was another month
        versions of the draft law was creating     before the UN’s Office of Legal Affairs
        suspicions at the UN that the              could respond substantively (the small
        Cambodians were acting in bad faith,       office was tied up with the final nego-
        further poisoning the process. Sok An,     tiations for the Special Court for Sierra
        however, argued that these concerns        Leone). The UN response finally came
        should be dealt with not in the            on October 10, in another letter from
        draft to be discussed by the Senate, but   Hans Corell to Sok An, detailing 11
        in the context of the yet-to-be-agreed     problematic issues in the law, mostly
        Memorandum of Understanding                those already raised in the previous
                                                   letter of January 7.49 In late January,
                                                   Sok An replied that most of the issues
                                                   raised by Corell reflected misunder-
Divergent versions of the draft law were           standings on the part of the UN that
 creating suspicions at the UN that the            could be addressed in the promised
  Cambodians were acting in bad faith.             Memorandum of Understanding
                                                   between the UN and the Royal
                                                   Government.50 Two weeks later, the
                                                   UN pulled out of the process.

        between the UN and the govern-
        ment.41 The Senate debated the ver-        February 2002: the UN balks
        sion passed by the National Assembly,      On February 8, 2002, Hans Corell
        and in another animated and often          convened a press conference in New
        poignant debate, passed it unani-          York to inform the world that the
        mously on January 15, 2001.42 It still     Secretary-General had instructed him
        took seven more months for the law to      to end the affair. “The United Nations
        complete the final stages of ratifica-     has come to the conclusion,” Corell
        tion: review by the Constitutional         announced, “that the Extraordinary
        Council (which recommended an              Chambers, as currently envisaged,
        amendment);43 amendment;44 second          would not guarantee the independ-
        passage                        through     ence, impartiality, and objectivity
        both houses of parliament and              that a court established with the sup-
        the Constitutional Council;45 and final-   port the United Nations must have.”51
        ly approval, on August 10, 2001,           It had been 18 months since any face-
        by the king, His Majesty Norodom           to-face encounter between the UN and
        Sihanouk.46                                Cambodian negotiating teams.
           Throughout this time, the UN was            The Cambodian government
        not supplied with a full translation of    was shocked, as were others.52
        the final law, and contact with the gov-   Condemnation of the UN decision
        ernment continued to be acrimo-            poured in from all corners of
        nious.47 A delay ensued while the          the international community. U.S.


        16                                                                      Open Society
                                                                       History



Ambassador to Cambodia Kent                 in any tribunal unless it is held
Wiedemann said his government               under the auspices of the UN.
was “extremely disappointed” by the
decision, and urged the Cambodians          There the matter rested through
to remain open to a resumption of        the winter, spring, and summer of
talks with the UN.53 France, Japan,      2002, with more precious time lost to
                                         the quest of achieving accountability
and a chorus of other nations also
                                         for the crimes of the Khmer Rouge.
registered unhappiness with the
                                         As if to underline the urgency, on
move, calling on the Secretary-General
                                         February 15, exactly one week after the
to reconsider his action.54
                                         UN withdrew from the negotiations,
    The     Secretary-General     was
unmoved. Human rights groups
applauded his stand as “principled,”
and urged him to hold fast.              Somehow, the two sides completed
“Participating in trial procedures       the negotiating sessions, culminating
which are not fair would serve only
                                         in a January 13 meeting between the
to undermine UN human rights
standards, and sell the Cambodian        Cambodian delegation and Kofi Annan.
people short,” Amnesty International
declared.55 Human Rights Watch
said that, “Given the failure of the     senior Khmer Rouge military com-
Cambodian government to address          mander Ke Pauk died peacefully of
the concerns about the tribunal raised   natural causes at age 68.58 He was one
more than a year ago, we feel the        of the handful of remaining Khmer
UN acted appropriately.”56 The most      Rouge leaders who met the criterion,
poignant voice in support of the UN’s    “those most responsible for the most
withdrawal from the tribunal process     serious violations.” The others were
came from domestic human rights          old, as well, so it would only be a mat-
groups in Cambodia. The Cambodian        ter of time before they too might
Human Rights Action Committee,           escape justice through death.
a coalition of 18 Cambodian human
rights groups, expressed sorrow at       The “group of interested
the turn of events, but reluctantly      states” intervenes
endorsed the UN decision.57 The
Action Committee said,                   During 2002, international opinion
                                         slowly coalesced around an action plan
    We also ask the UN to refuse         to reverse the UN withdrawal. A group
    participation or support for any     of some three dozen interested coun-
    process which does not meet          tries, led by Japan, France, Australia,
    international standards. With        and the United States, worked quietly
    regard to individual member          in the background to restart negotia-
    states of the UN, CHRAC urges        tions. Success came when Annan told
    them not to consider participating   Hun Sen that the UN would return


Justice Initiative                                                              17
The Extraordinary Chambers



to the tribunal negotiations—if, and       er, the two sides completed a series
only if—the UN Security Council            of substantive negotiating sessions,
or General Assembly issued a “clear        culminating in a January 13 meeting
mandate” for negotiations. The infor-      between the Cambodian delegation
mal group of countries now set about       and Kofi Annan. The Secretary-
drafting such a mandate in the form        General was uncharacteristically
of a UN General Assembly resolution.       cold and unyielding. There was no
A first draft was withdrawn by             point in holding further discussions,
its main sponsor, Australia, after the     he informed Sok An, unless Hun Sen
Cambodian government refused to            first agreed to the UN’s conditions in
co-sponsor it. A next draft, spearhead-    writing. The Cambodians departed
ed by Japan and France in close            New York empty handed.
consultation with Sok An’s Tribunal            Then on February 13, 2003, three
Task Force, received the backing           weeks after Sok An had returned
of 150 votes and none against in the       to Phnom Penh, a delegation of diplo-
UN General Assembly on December            mats from the United States, France,
18, 2002.60 Thirty countries abstained,    India, Japan, the Philippines, and
however, including most of the             Australia met with Kofi Annan and
European Community nations, a              Hans Corell to express their displeasure
group that had been at the forefront       over the Secretariat’s interpretation
of the push for a renewed negotiating      of the December 18 resolution.63 They
mandate. The Swedish delegate              insisted that Cambodia’s Khmer Rouge
summarized their reservations:             tribunal law be taken as the basis of
“to require the Secretary-General to       negotiation for a tribunal agreement.
resume negotiations based on a text        The UN Secretariat finally caved in.
which did not address the failings of      On March 13, Corell arrived in Phnom
the last negotiations risked leaving the   Penh at the head of a UN delegation,
perpetrators of crimes during the          and the UN and Cambodian
Khmer Rouge period with impunity           teams hammered out a final draft
and did not guarantee international        Memorandum of Understanding. Sok
legal standards.”61                        An seemed pleased, telling reporters,
    Soon afterward, Hans Corell            “We have traveled a long road.”64
opened the new talks in New York           Under-Secretary Corell, by contrast,
by suggesting that Cambodia’s Khmer        said, “My hands are tied.”65 When
Rouge tribunal law was so deeply           asked directly if the agreement would
flawed that the only sensible course       provide for judicial independence, the
was for Cambodia to abandon the law,       UN’s chief legal counsel demurred: “As
and for negotiations to begin from         an international civil servant I have
scratch, using the original proposals      been given the task to negotiate this text
laid on the table by the UN in August      and I have done so to the best of my
1999.62 Sok An protested that this         ability. My personal opinion is a differ-
did not reflect the intent of the          ent matter.”66 Nevertheless, he insisted
General Assembly. Somehow, howev-          that the draft agreement was “designed


18                                                                       Open Society
                                                                                        History



to ensure a fair and public trial by an                 in the trials and we have agreed
independent and impartial court.”67                     to share with the international
    On May 1, 2003, the UN General                      community the heavy task of
Assembly’s Third Committee con-                         judging the serious crimes com-
vened to debate the draft agreement                     mitted in our own country by our
between the UN and Cambodia on the                      own people.
Khmer Rouge tribunal. Cambodian                         The next day, May 2, the agreement
Ambassador Ouch Borith spoke                        was passed by consensus, despite
passionately in favor of the measure.68             significant misgivings in statements
“I’ll never forget the days when 12                 from the Dutch and Swedish delega-
members of my family and more than                  tions, and U.S. abstention. It was
2 million of the Cambodian people                   formally adopted on May 13.71
were executed and buried in mass                    Cambodia’s Council of Ministers had
graves,” Borith told the gathered                   by then approved the draft agree-
members of the Third Committee.69                   ment.72 The next step was for
What happened under the Khmer                       Cambodia to adopt appropriate
Rouge regime, he continued, “still                  amendments to its existing 2001
haunts me and my people, and                        tribunal law in order to bring that
I cannot wipe out this nightmare                    statute into conformity with the UN
either. One must listen to what the                 Agreement. This process was complet-
Cambodian holocaust survivors have                  ed in October 2004, marking the final-
to say.” He added:                                  ization of the statute of the Khmer
    It is also very important to under-             Rouge tribunal in its present form.
    stand that the Law adopted by our                   Hun Sen and his chief negotiator,
    legislature was the outcome of                  Sok An, had out-negotiated two of the
    the complex negotiations between                UN’s most senior civil servants, Kofi
    Cambodia and the UN, and con-                   Annan and Hans Corell. Whether the
    tains within it a number of signif-             outcome of this long struggle will
    icant compromises made by both                  indeed be “a fair and public trial,” as
    parties. We have requested not                  Hans Corell promised in the wake of
    only international assistance but               his defeat, is the next test.
    also international participation


Notes
Craig Etcheson is a visiting scholar at Johns Hopkins University’s School of Advanced International
Studies. He is the author of several books on the Khmer Rouge, including After the Killing Fields:
Lessons from the Cambodian Genocide (2005) and the forthcoming Extraordinary Chambers: Law,
Politics and War Crimes Tribunals.
1. Samdech Hun Sen, Cambodia’s present prime minister, defected from the Khmer Rouge to
Vietnam in 1977. He became foreign minister in the Cambodian government that followed the
Vietnamese overthrow of the Khmer Rouge in 1979 and prime minister in 1985. Following
UN-run elections in 1993, Hun Sen was co-prime minister together with Norodom Ranariddh.
A coup in July 1997 returned him as sole prime minister.



Justice Initiative                                                                               19
The Extraordinary Chambers



2. Author’s notes from the “International Conference on Striving for Justice: International Criminal
Law in the Cambodian Context,” Phnom Penh, August 21, 1995.

3. Letter from Cambodian co-prime ministers Norodom Ranariddh and Hun Sen to UN Secretary-
General Kofi Annan, June 21, 1997; distributed on the Internet via the Camnews news group, June
25, 1997.

4. Chris Fontaine, “Cambodia Premier Says No to Trial,” Associated Press, December 28, 1998.

5. A senior minister of the Royal Government outlined this chronology privately for the author in
March 1999.

6. Author’s interview with Hor Nam Hong, March 13, 1999, New York.

7. Author’s interview with Hor Nam Hong, March 13, 1999, New York.

8. The Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135,
by Ninian Stephen, chairman, Rajsoomer Lallah, and Steven R. Ratner, dated February 18, 1999, is
presented as an annex to the United Nations document, Identical Letters Dated 15 March 1999 from
the Secretary-General to the President of the General Assembly and the President of the Security Council,
A/53/850 and S/1999/231, March 16, 1999.

9. Identical Letters.

10. “Projet: Loi relative à la répression des crimes de génocide et des crimes contre l’humanité,”
typescript, n.d., n.p. (August 26, 1999, Council of Ministers, Phnom Penh, Cambodia).

11. Amnesty International has said of the Supreme Council of the Magistracy, “Serious questions
remain about its independence. . . . The Supreme Council of Magistracy has yet to demonstrate that
it has either the will or the ability to protect the independence of the judiciary.” See Law and Order—
without the Law, Amnesty International, March 1, 2000 [ASA 23/001/2000]. For more on questions
of judicial independence and corruption at the Phnom Penh Municipal Court, see, for example,
Lee Berthiaume and Park Chan Thul, “‘Iron Fist’ Court Reform Seizes One of Its Own,”
The Cambodia Daily, August 19, 2005.

12. UN A/53/850, Identical Letters, 3.

13. These comments were made both in writing (“Comments on the Draft Law Concerning the
Punishment of the Crime of Genocide and Crimes Against Humanity,” August 27, 1999, annex
to a letter from Assistant Secretary-General Ralph Zacklin to His Excellency Sok An, minister of
state, Royal Government of Cambodia) and verbally (“Aide Memoire: Second Meeting between the
Cambodian Task Force on the Khmer Rouge Tribunal and the visiting UN Delegation,” Council
of Ministers, Phnom Penh, Cambodia, August 28, 1999).

14. “Draft: Law on the Establishment of a Tribunal for the Prosecution of Khmer Rouge Leaders
Responsible for the Most Serious Violations of Human Rights,” annex to a letter from Assistant
Secretary-General Ralph Zacklin to His Excellency Sok An, minister of state, Royal Government
of Cambodia, August 27, 1999.

15, For more details on the political maneuvering that animated these twists and turns in the negoti-
ations, see Craig Etcheson, “The Politics of Genocide Justice in Cambodia,” 178-202 in Cesare
P.R. Romano, André Nollkaemper, and Jann Kleffner (eds.), Internationalized Criminal Courts:
Sierra Leone, East Timor, Kosovo and Cambodia, London: Oxford University Press, 2004.

16. For Zacklin’s rebuff of Sok An’s request, see “Aide Memoire: Second Meeting between the
Cambodian Task Force on the Khmer Rouge Tribunal and the Visiting UN Delegation,” Council
of Ministers, Phnom Penh, Cambodia, August 28, 1999.

17. See Article VI, Convention on the Prevention and Punishment of the Crime of Genocide, UN
General Assembly, December 9, 1948.

18. “Aide Memoire on the Conversation between Hun Sen, Prime Minister of the Royal Government
of Cambodia, and H.E. Kofi Annan, Secretary-General of the United Nations,” September 17, 1999,
New York [unofficial translation].


20                                                                                          Open Society
                                                                                         History



19. Aide Memoire, September 1999. The Cambodian need for legal expertise was and remains
widely recognized. In their June 21, 1997, letter to the UN Secretary-General requesting assistance
in establishing a genocide tribunal, for example, co-premiers Norodom Ranariddh and Hun Sen
observed that “Cambodia does not have the resources or expertise” necessary to conduct such a
complex procedure. Letter on file with the author.

20. A UN spokesman described the discussions between Hun Sen and Kofi Annan as “frank.”
United Nations, “Read-out of the Secretary-General’s Meeting with Hun Sen, the Prime Minister
of Cambodia,” September 16, 1999.

21. Remarks of Hun Sen before the United Nations General Assembly on September 20, 1999,
as excerpted in the New York Times; see “U.N. Oratory: Pleas for Help, Pride in Democracy,”
September 21, 1999.

22. “Statement of the Democratic National Union Movement on the so-called ‘UN Plan,’”
September 2, 1999, Pailin, Cambodia; signed by Ieng Sary.

23. For some of the documentary evidence of Ieng Sary’s culpability in the mass killing, see
Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide, Westport, CT:
Praeger Publishers, (2005), Chapter 5, “Centralized Terror,” 210, fn 12.

24. See Tony Kevin, “Cambodia vs the UN,” Far Eastern Economic Review, November 11, 1999.

25. See Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building,
New Haven: Yale University Press, 2003, Chapter 11, for background on the politicized nature
of the Cambodian judicial system.

26. Some in the UN found the nature of U.S. diplomacy unnecessarily secretive. See, for example,
“Efforts to Establish a Tribunal against the Khmer Rouge Leaders: Discussions between the
Cambodian Government and the UN,” paper presented by Ambassador Thomas Hammarberg at
a seminar organized by the Swedish Institute of International Affairs and the Swedish Committee
for Vietnam, Laos and Cambodia, Stockholm, May 29, 2001. On page 23, Hammarberg notes,
“Though the U.S. intervention in some respects was helpful, it would have been more useful
if there had been better coordination with the UN efforts or with other governments.”

27. Unofficial translations of two different December 1999 Cambodian drafts of the proposed
“Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecution
of Crimes Committed during the Period of Democratic Kampuchea” are on file with the author.

28. See, for example, “Cambodian PM Stands behind Pol Pot Lieutenant as Trial Debate Looms,”
Agence France-Presse, November 30, 1999.

29, United Nations, “Non-Paper on Khmer Rouge Trial,” January 5, 2000.

30. Kofi Annan after the February 12 meeting with Hun Sen, quoted in Hammarberg, “Efforts to
Establish,” 27.

31. Examples of Hun Sen defending the impunity of Ieng Sary abound. At one juncture, for
instance, Hun Sen alluded to double jeopardy protections for Ieng Sary, asking, “How can a person
be convicted twice for the same crime?” See “Hun Sen Reiterates Preference Not to Try Ieng Sary,”
Kyodo, September 24, 2000. Nine weeks later, in reference to a proposal to annul the 1996 royal
decree granting Ieng Sary amnesty, Hun Sen flatly said, “I will not do that.” See “Cambodian PM
Stands behind Pol Pot Lieutenant as Trial Debate Looms,” Agence France-Presse, November 30,
2000.

32. This paragraph is based on the following sources: “Hun Sen Welcomes Trial Suggestions
from U.S. Sen. Kerry,” Associated Press, April 18, 2000; “Hun Sen Withdraws Acceptance of
U.S. Formula on Trial,” Associated Press, April 25, 2000, Kyodo; and Ker Munthit, “Deal Reached
on Cambodia Tribunal,” Associated Press, April 29, 2000.

33. Private communication with the author from a member of the UN tribunal negotiating team,
August 17, 2000.



Justice Initiative                                                                                    21
The Extraordinary Chambers



34. Private communication with the author from a member of the Cambodian Task Force, March 22,
2000.

35. Reflecting both the growing frustration at the UN with the lengthy negotiations and the decision
to set a deadline for a positive Cambodian response, Under-Secretary Corell told reporters “The
Secretary-General has indicated that there is a time limit. . . we can’t continue in this way.” Quoted
in “U.N. Urges Swift Action on Khmer Rouge Trial,” Reuters, Friday, July 7, 2000. And despite the
national/international mix of this new model of justice, Corell also observed, “This is not a United
Nations operation. It is a national court with international presence.” Puy Kea, “U.N. Legal Team
Leaves Cambodia,” Kyodo, July 7, 2000.

36. “Presentation and Comments on the Draft Law on the Establishment of Extraordinary Chambers
in the Courts of Cambodia for Prosecution of Crimes Committed during the Period of Democratic
Kampuchea, by His Excellency Sok An, minister in charge of the Office of the Council of Ministers,
President of the Task Force for Cooperation with Foreign Legal Experts and Preparation of the
Proceedings for the Trial of Senior Khmer Rouge Leaders,” 5th Session of the 2nd Legislature,
National Assembly, December 29, 2000, and January 2, 2001. (Unofficial translation by the
Documentation Center of Cambodia).

37. “A Minute on the Session of the National Assembly of the Kingdom of Cambodia, A Draft Law
on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecution of
Crimes Committed during the Period of Democratic Kampuchea,” December 29, 2000, and
January 2, 2001. (Unofficial translation by Sorya Sim and Vichea Sopheak Tieng, Documentation
Center of Cambodia.)

38. Letter from UN Under Secretary-General Hans Corell to Minister of the Council of Ministers
Sok An, January 9, 2001. Letter on file with the author.

39. The following paragraph is based on a letter from UN Under Secretary-General Hans Corell to
Minister of the Council of Ministers Sok An, January 9, 2001. Letter on file with the author.

40. Ieng Sary’s 1996 Royal Pardon, granted by King Norodom Sihanouk at the request of co-prime
ministers Norodom Ranariddh and Hun Sen, was a matter of consistent contention over the course
of the tribunal negotiations. See Etcheson, After the Killing Fields, 130-1.

41. “UN Unhappy with Cambodia’s Proposed Treatment of Ieng Sary,” Kyodo, January 13, 2001.

42. “Cambodia Passes Khmer Rouge Law,” Associated Press, January 15, 2001. In the course of the
debate, Senator Keo Bunthouk highlighted the political complexity of the situation by questioning
whether or not Foreign Minister Hor Nam Hong, a close ally of Prime Minister Hun Sen, should be
subject to an investigation by the tribunal, asserting that Hong had sent victims to their deaths at
the infamous S-21 extermination center. See Kay Kimsong, “Senate Continues Spirited Debate on
KR Bill,” The Cambodia Daily, January 12, 2001. Another senior senator directly challenged Prime
Minister Hun Sen’s frequent comments to the effect that Ieng Sary should be held harmless by the
tribunal. The chairman of the Senate Legislative Committee, Ouk Bun Thhoeun, argued that it was
not for Hun Sen to decide who would and who would not be prosecuted. “In fact no one can prohib-
it the activities of the court. His (Hun Sen’s) comment is his own opinion, but according to the law
it’s up to the court prosecutors to determine who will be prosecuted.” “Cambodia Khmer Rouge
Tribunal Should Start In ’01 - Hun Sen,” Associated Press, January 11, 2001.

43. “Cambodia Constitutional Council OKs Khmer Rouge Trial Bill,” Kyodo, February 12, 2001. See,
for example, Ray Johansen, “Article for ‘Searching for the Truth’ Concerning Allegation by the
Government that the Khmer Rouge Trial Law Refers to a Death Penalty,” distributed by the
Documentation Center of Cambodia, June 6, 2001. The Constitutional Council said that a reference
to the 1956 Penal Code, which included the death penalty, should be eliminated as the death penalty
was no longer constitutional in Cambodia.

44. Personal communication from Sorya Sim of the Documentation Center of Cambodia, June 22,
2001.




22                                                                                       Open Society
                                                                                          History



45. “Draft Law For Khmer Rouge Trial Amended; No Death Penalty,” Associated Press, June 22,
2001; “No Obstacles To Adoption of KR Tribunal Law,” Associated Press, July 11, 2001. “Cambodia
Senate Passes Khmer Rouge Trial Law,” Reuters, July 23, 2001. “Khmer Rouge Atrocities Trial Law
Clears Hurdle,” Reuters, August 7, 2001. “King Norodom Sihanouk Signs Khmer Rouge
Legislation,” Agence France-Presse, August 10, 2001.
46. “King Norodom Sihanouk Signs Khmer Rouge Legislation,” Agence France-Presse, August 10,
2001.
47. Barbara Crossette, “Pact Sought on Khmer Rouge Trials,” New York Times, June 28, 2001. See also
United Nations, “Secretary-General Clarifies Position on Cambodian Government Responsibility For
Trials of Former Khmer Rouge Leaders,” SG/SM/7868, June 27, 2001. “Cambodia PM Comments
Raise Doubts On Khmer Rouge Tribunal,” Associated Press, June 29, 2001. Gary Thomas,
“Cambodian Leader Criticizes UN Over Tribunal,” Voice of America, June 29, 2001.
48. United Nations, “UN Looks Forward to Receiving New Cambodian Law on Khmer Rouge Trials,
Secretary-General’s Spokesman States,” SG/SM/7911, August 10, 2001. “English Translation of
Cambodia’s Tribunal Law Delayed,” Kyodo, August 22, 2001.
49. Private communication with the author from a senior official of the UN Office of Legal Affairs,
October 28, 2001.
50. Thet Sambath and Matt Reed, “Letter to UN Details Government Stand on Tribunal,” The
Cambodia Daily, January 23, 2002.
51. United Nations, “Daily Press Briefing by the Office of the Spokesman for the Secretary-General,”
February 8, 2002.
52. “Cambodia Stunned by UN Withdrawal from Khmer Rouge Trial,” Agence France-Presse,
February 9, 2002.
53. Chhay Sophal, “Cambodia Says Keeping Door Open for U.N. on Trial,” Reuters, February 10,
2002.
54. See, for example, Matt Reed and Thet Sambath, “UN-Backed KR Trial Still a Possibility,” The
Cambodia Daily, February 11, 2002.
55. Cambodia: Flawed Trials in No One’s Best Interests, Amnesty International, February 11, 2002.
56. Cambodia: Tribunal Must Meet International Standards, Human Rights Watch, February 12, 2002.
57. Cambodian Human Rights Action Committee, press release, February 21, 2002.
58. See, for example, Seth Mydans, “As Trials Lag, Death May Save Khmer Rouge From Justice,”
New York Times, February 19, 2002.
59. “Cambodia ‘May Compromise’ on Genocide Trial,” BBC News, July 2, 2002; “UN Rejects
Cambodia’s Bid to Revive Khmer Rouge Trial,” Reuters, July 3, 2002; “Mandate from Key UN
Bodies Needed to Restart Talks on Khmer Rouge Trials–Annan,” UN News Centre, August 20,
2002.
60. United Nations, General Assembly, France and Japan: Draft Resolution, Khmer Rouge Trials,
A/C.3/57/L.70, November 13, 2002; United Nations, General Assembly, Khmer Rouge Trials,
A/RES/57/228, December 18, 2002.
61. United Nations, press release, GA/SHC/3728, November 20, 2002.
62. The following account is based on the author’s private conversations with UN and Cambodian
government officials in January 2003.
63. Tom Fawthrop, “Khmer Rouge: ‘Last Chance’ for Justice,” Asia Times Online, February 19, 2003.




Justice Initiative                                                                                  23
The Extraordinary Chambers



64. “Cambodia: Draft Agreed for KR Genocide Tribunal,” Bangkok Post, March 18, 2003; Reach
Sambath, “UN Team Arrives in Cambodia for ‘Last Chance’ Talks on Khmer Rouge Tribunal,”
Agence France-Presse, March 13, 2003.
65. Personal communication from Tom Fawthrop, March 18, 2003.
66. Transcript, “Hans Corell interview,” BBC East Asia Today, March 17, 2003.
67. “UN and Cambodia Reach Draft Agreement for Prosecuting Khmer Rouge Crimes,”
UN News Centre, March 17, 2003.
68. United Nations, General Assembly, Third Committee, GA/SHC/3733, May 1,2003.
69. Statement by His Excellency Ouch Borith ambassador, permanent representative of the
Kingdom of Cambodia to the United Nations at the Third Committee of the 57th Session of
the United Nations General Assembly, New York, May 1, 2003.
70. “Netherlands Statement on the Khmer Rouge Trials,” UN General Assembly, May 2, 2003;
“Swedish Statement on Khmer Rouge Tribunal,” UN General Assembly, May 2, 2003; United
Nations, General Assembly, Third Committee Approves Draft Resolution on Khmer Rouge Trials,
GA/SHC/3734, May 2, 2003.
71. United Nations, General Assembly, General Assembly Approves Draft Agreement between UN,
Cambodia on Khmer Rouge Trials, GA/10135, May 13, 2003.
72. “Cambodian Cabinet Approves Khmer Rouge Trial Draft,” Agence France-Presse, March 28,
2003.




24                                                                                  Open Society
                                                                 Perspectives



PERSPECTIVES

The Khmer Rouge Tribunal:
What it Means for Cambodia
Deputy Prime Minister of Cambodia          Government of Cambodia concerning
Sok An looks at Cambodia’s long road       the Establishment of the Extraordinary
to justice—and what lies ahead.            Chambers for Prosecution under
                                           Cambodian Law of Crimes Committed
Thirty years ago we had special cause      during the Period of Democratic
to celebrate when the bitter and tragic    Kampuchea.
war in our country finally ended: a war
                                              It has been a long road indeed.
in which we suffered bombing on
                                           After we managed to overthrow the
a greater scale even than that suffered
                                           Khmer Rouge in January 1979, unfor-
by Japan during the Second World
                                           tunately very few members of the
War, and that displaced over a third
                                           international community helped us to
of our people and destroyed almost
all our infrastructure.
    On April 17, 1975, our people flood-
ed the streets of Phnom Penh to wel-       It has taken a whole generation to
come the liberating troops, known as
                                           establish an appropriate mechanism to
the Khmer Rouge. But our happiness
at the end of the war was short-lived.     reach accountability for these crimes.
We entered into a nightmare lasting
three years, eight months, and twenty
days, during which time we lost a          rebuild the country. I wish today to
quarter of our population—up to three      reaffirm our eternal gratitude to those
million of our people perished in mis-     who did assist our efforts. But to our
erable circumstances of starvation and     great amazement and distress, those
untreated illness, as well as from tor-    Khmer Rouge leaders who had carried
ture and execution.                        out horrendous crimes in the recent
    It has taken a whole generation to     past—two of whom, Pol Pot and Ieng
arrive at this moment, when we are         Sary, had actually been convicted in
able to establish an appropriate mech-     the world’s first genocide trial held
anism to reach accountability for these    in the Cambodian capital, Phnom
crimes, but now we are finally stand-      Penh, in August 1979—continued to
ing on the brink of doing so. On April     be accorded the right to represent
29, 2005, Cambodia reached a mile-         Cambodia in the United Nations
stone in its history with the entry into   General Assembly throughout the
force of the Agreement between             1980s, and were given political, eco-
the United Nations and the Royal           nomic, and even military assistance


Justice Initiative                                                              25
The Extraordinary Chambers



in their efforts to overthrow the actual    isolate, finish, integrate, and develop.”
government of the day.                      The Khmer Rouge political and mili-
    As a result of this support, a civil    tary structure was thereby ended, but
war ensued in which hundreds of             those Khmer Rouge who had defected
thousands more Cambodians lost              were assured of their physical safety
their lives, despite the fact that they     and survival, the right to work and
had been liberated from the Khmer           to carry out their professions, and the
Rouge genocidal regime. Ideology and        security of their property.
the interests of certain powerful coun-         By the end of December 1998, we
tries caused the international commu-       had managed to put an end to the
nity to forget truth, justice, and human    Khmer Rouge’s political and military
rights, and to ignore the tragedy and       structure, and were faced with the twin
deaths of millions of Cambodians.           tasks of national reconciliation and
Instead of justice, the prize awarded       justice. Cambodia can perhaps offer
to Cambodia was a life in a situation       lessons for other post-conflict coun-
swinging between peace and war, of          tries, drawn from our experience of the
stunted economic development, and           long and complex process of reconcili-
the laying of millions of landmines         ation. Today, former Khmer Rouge
that to this day threaten our poor peo-     have put down their guns and recom-
ple in remote rural areas of the country.   menced their lives within the general
    As signatories to the Paris Peace       community, and the former factions
Agreements of 1991, the Khmer               have taken up the challenge of working
Rouge were accorded fresh political         together to develop the country.
legitimacy, and following the depar-            In Cambodia, reconciliation has
ture of the United Nations                  not meant amnesia. Important efforts
Transitional Authority in Cambodia          to uncover and document the truth
(UNTAC), which governed Cambodia            of what happened under the Khmer
between 1992 and 1993, the Khmer            Rouge have been initiated since the
Rouge began a renewed campaign of           very first days after their overthrow.
destabilization and civil war against       In early 1979, the notorious S-21
the new government. That govern-            prison in central Phnom Penh was
ment, of which I was a member, then         turned into the Tuol Sleng Genocide
launched a multifaceted strategy            Museum, and the killing field on
involving political, legal, economic,       the outskirts of the capital, where
and military campaigns, including           over 15,000 inmates of S-21 were
legislation to outlaw the Khmer Rouge       slaughtered, became the Choeng Ek
in 1994, and efforts to encourage           Memorial, where their remains are
its members to defect. What Prime           respected and honored in memorial
Minister Hun Sen has described as           stupa. Significant oral and physical
a “win-win” policy has formed the           evidence of the crimes committed
bedrock of the political platform of the    (including exhumations and forensic
Royal Government of Cambodia ever           analysis) was gathered as a basis for
since. It involved five facets: “divide,    the 1979 genocide trials. In the early


26                                                                       Open Society
                                                                  Perspectives



1980s, a massive research effort com-      that year, and to the years of research,
piled testimony in petitions from over     negotiations between the United
one million Cambodians from almost         Nations and the Royal Government
every province in the country. Valuable    of Cambodia, and legislative action
work has been carried out by the           that followed.
Cambodian Genocide Program, based             In August 1999, the Prime
at Yale University in the United States,   Minister of Cambodia, Samdech Hun
and by the Documentation Center of         Sen, established a Task Force for
Cambodia in Phnom Penh, which has          Cooperation with Foreign Legal
painstakingly assembled and analyzed
documents and mapped genocide
sites throughout Cambodia.
    We must acknowledge, however,          Today, former Khmer Rouge have put
that Cambodia’s achievements in the        down their guns and recommenced
fields of truth and reconciliation have
not been paralleled by comparable          their lives within the general community.
advances in achieving justice for
the victims of that genocidal regime.
It is a task that has been on our minds
since 1979, when we established the        Experts for the Preparation of the
People’s Revolutionary Tribunal to try     Proceedings for the Trial of Khmer
Pol Pot and Ieng Sary. Unfortunately,      Rouge Criminals. I was given the
due in part to weaknesses in that          privilege of acting as Chairman of the
process, but above all to the political    Task Force, which consists mainly
isolation of our government at             of senior jurists supplemented by
that time, the testimony and the ver-      representatives of the ministries of
dicts were simply ignored outside          economy and finance, of the interior,
Cambodia. The task of trying the           and of land management, urban plan-
Khmer Rouge leaders therefore              ning and construction.2 The full Task
remains, and is one we have had to         Force has met as required to decide
engage in again over the past years.       policy issues, to draft legislation, and
Now, as we throw our efforts into this     to engage in negotiations with the
quest for justice, we are concerned        United Nations. Its day-to-day work
not to damage the process of reconcil-     is carried out by a small but active
iation that has already taken place.       Secretariat within the Office of the
In Cambodia, we seek justice to heal       Council of Ministers.3
the wounds of our society.
    In June 1997, the then co-prime        Three guiding principles
ministers of Cambodia requested            Since we sought the assistance of the
United Nations assistance in organiz-      United Nations in July 1997, and even
ing a Khmer Rouge trial.1 This led to      before that time, our government has
the adoption of a resolution in the        consistently held to the following
UN General Assembly in December            three principles as its guiding lights:


Justice Initiative                                                               27
      The Extraordinary Chambers



          Respect and search for justice. We      which together provide the basis for
      condemn the crimes of the Khmer             the Khmer Rouge tribunal in our
      Rouge as crimes of genocide and             national legal system, were presented
      crimes against humanity. We seek jus-       for a vote.4
      tice for the victims and for the entire         Respect      national    sovereignty.
      Cambodian people, and we wish also          Sovereignty is enshrined as a funda-
      to contribute to the development of         mental principle in the Charter of
      international humanitarian principles       the United Nations.5 We have strug-
      condemning genocidal crimes and             gled hard to consolidate this principle
      seeking to prevent their recurrence.        in Cambodia. The Royal Government
                                                  of Cambodia did not accept the recom-
                                                  mendation of the Group of Experts,
We seek justice for the victims and for           proposing a trial held entirely outside
                                                  the country, with no Cambodians
 the entire Cambodian people, and to
                                                  participating except as defenders or
  prevent the recurrence of genocide.             spectators. As Prime Minister
                                                  Samdech Hun Sen remarked at the
                                                  time, the only jobs the Secretary
          Maintain peace, political stability,    General would like to give to
      and national unity. Cambodia has just       Cambodians would be to “go into
      achieved peace, stability, and unity.       the jungle to capture the tiger” and
      We do not yet have perfect law and          to be “the watchdog for the UN.”
      order or perfect security—but that              It has been our consistent view
      would be impossible in light of the         that, under Article 6 of the Genocide
      recent traumatic past. We are proud         Convention, Cambodia has the pri-
      of moving forward in the process of         mary obligation to prosecute the
      strengthening political stability, peace,   Khmer Rouge and could proceed with-
      and security—and this is a valuable         in domestic courts. Let me remind
      achievement for our beloved mother-         critics of this approach that the princi-
      land. Whatever we do must not dam-          ple of complementarity is fundamen-
      age our peace and stability—indeed          tal to the International Criminal
      throughout the process over the past        Court, which Cambodia is proud
      four years of designing the Khmer           to have ratified, one of the first 60
      Rouge trials, we have always sought         member states to do so.6
      to gain consensus based on respect
                                                      However, despite the fact that we
      for the highest national interests.
                                                  were fully entitled to prosecute
          Some have criticized the slow pace      the Khmer Rouge in a national court,
      of the process, but to achieve national     we sought international involvement
      consensus is a difficult task, one          in the process, preferably through
      whose success was demonstrated by           the United Nations. Why? On the one
      the unanimous vote achieved in both         hand, because we were all too acutely
      houses of our legislature every time        aware of the weaknesses of our judici-
      the Law and Agreement with the UN,          ary, and wanted help to make certain


      28                                                                       Open Society
                                                                   Perspectives



that the trial will meet internationally        In addition to the Secretary-
accepted standards. On the other            General’s appeal for the international
hand—and let me be frank here—we            share, we also asked interested states
felt it important for the international     to assist Cambodia in meeting its
community to share in this task, in         allocated share of the budget, amount-
order to clear its own record of previ-     ing to U.S. $13.3 million. The Royal
ous support for the Khmer Rouge.            Government will contribute U.S.
This was our reasoning in 1997 when         $6.7 million—consisting of U.S.
we asked for assistance, in 1999            $1.5 million in cash to supplement
when we reached a decision in princi-       our estimated U.S. $5.2 million in-
ple with the UN to hold a national trial
with international participation, and it
is still our reasoning today.
    These three principles are reflected
                                            All too aware of the weaknesses
in the Law, adopted in 2001 and             of our judiciary, we wanted help to
amended in 2004, and also in the            ensure the trial will meet internationally
Agreement between Cambodia and
the United Nations, signed on June 6,       accepted standards.
2003, at the Chaktomuk Theater,
between His Excellency Hans Corell
(then legal counsel and under-secre-        kind contribution. This pledge from
tary general of the UN) and myself.         Cambodia amounts to over 10 percent
                                            of the total costs of the Khmer Rouge
Costs and benefits                          tribunal.
                                                I would like to emphasize that from
The cost of the Khmer Rouge tribunal
                                            the beginning of the budget negotia-
is estimated at around U.S. $61.5 mil-
                                            tions we stated clearly that we would
lion in total. That includes an in-kind
                                            need to request bilateral contributions
contribution from Cambodia of U.S.
                                            to help us meet the total allocated
$5.2 million, which does not figure
                                            as the Cambodian share, because the
in the official budget of U.S. $56.3
                                            full amount was beyond Cambodia’s
million. On December 17, 2004, UN
                                            capacity. It goes without saying that
Secretary-General Kofi Annan issued
                                            both sides of the budget are of equal
an appeal to interested members
                                            importance to the challenging task of
states for contributions to the interna-
                                            establishing a sound process that
tional share of this budget, set at U.S.
                                            meets international standards.
$43 million, and in the first half of
2005, this was essentially fully sub-           We are confident that the formula
scribed. I wish to mention our appre-       we have agreed to establish will not
ciation for the generosity of the fifteen   only meet our country’s needs for
countries that have pledged, and above      justice in this egregious case, but will
all to Japan’s contribution of U.S. $21     also assist the wider process of legal
million—fully 50 percent of the total       and judicial reform in our country,
international share of the budget.          by providing a model court meeting


Justice Initiative                                                               29
     The Extraordinary Chambers



     international standards. Furthermore,      a whole. It is therefore fitting that both
     we are hopeful that the Cambodian          Cambodian and international judges,
     model may also serve as an inspiration     prosecutors, and lawyers will work
     for other countries in their search for    together in the task of trying those
     justice. We are now coming to the end      most responsible and, in so doing,
     of a very, very long road. Over a quar-    helping to build a culture that will pre-
     ter of a century ago, the Khmer Rouge      vent the recurrence of such crimes
     leadership was ousted from its cruel       anywhere in the world.
     control of our country.                        I have no doubt that the road ahead
                                                will also not be easy, as we move from
                                                the negotiating phase to the imple-
     We are confident that the EC will          mentation phase. We expect that
not only meet our country’s needs for           later this year we will be in a position
                                                to commence the Extraordinary
 justice, but will also assist the wider        Chambers, which will have the heavy
 process of legal and judicial reform.          responsibility of meting out justice
                                                for the most serious crimes against
                                                international humanitarian law and
                                                Cambodian domestic law.
         As Prime Minster Samdech Hun
     Sen recently stated: “Not a single one         We appeal to all who have encour-
     of our people has been spared from         aged us along the way now to translate
     the ravages brought upon our country       their expressions of support into mate-
     during the three years, eight months,      rial terms, including making pledges
     and twenty days that the Khmer Rouge       to the United Nations Trust Fund,
     held power under the regime known          nominating judges and other person-
     as Democratic Kampuchea. Those             nel of the highest caliber, and making
     born after 1979, who did not directly      other contributions in kind. We want
     experience these crimes, nevertheless      to ensure that the Khmer Rouge tribu-
     still bear a heavy burden. They see        nal is established as soon as possible,
     their parents and older brothers and       and that it functions at a level that
     sisters in pain and grief. They have       meets international standards.
     shared in the difficulties of rebuilding       Now, as we stand at last on the
     our society from Year Zero without the     brink of trying the Khmer Rouge lead-
     benefit of the wisdom and experience       ers, it is a time for all Cambodians—
     of those who were lost. It continues       and all fair-minded people around the
     to be a long, hard struggle and we         world—to do our utmost to make the
     all know that Cambodia today lags          Khmer Rouge trials a successful
     far behind our neighbors in health,        process, despite any past differences
     education, and income levels.”
                                                of opinion as to what form of court, tri-
         The Khmer Rouge crimes were            bunal, or commission, is most appro-
     committed not just against the people      priate. Let us pledge to work together
     of Cambodia but against humanity as        toward this end.


     30                                                                       Open Society
                                                                                   Perspectives



Notes

His Excellency Mr. Sok An is deputy prime minister of Cambodia, minister in charge of the
Office of the Council of Ministers, and chairman of the Government Task Force for the Khmer
Rouge Trials.
1. For more on the background to the negotiations, see Craig Etcheson’s article in the present issue
of Justice Initiatives.
2. The Task Force, appointed by a decision of the prime minister on August 9, 1999, consisted
of: Sok An (chairman); Ouk Vithun, then minister of justice; Om Yentieng, chairman of the
Cambodian Human Rights Commission and advisor to the prime minister; and Heng Vong
Bunchhat, supreme advisor to the government (three deputy chairmen); with members Ly Vouch
Leang, then secretary of state for justice; Suy Nou, then secretary of state for justice; Chan Tany,
then advisor to the prime minister; Ang Vong Wattana, then adviser to Deputy Prime Minister
Sar Kheng; and Leng Peng Long, then president of the Expert Group of the Council of Jurists.
3. The Secretariat of the Task Force consists of Sean Visoth as executive secretary, Tony Kranh
as legal secretary, and Helen Jarvis as advisor, with a support team comprising Nau Soursdey
(administration), Sun Rapid (IT), and Orn Panhha (legal). It has benefited from pro bono legal
 support from Gregory Stanton, Tara Gutman, Helen Brady, David Scheffer, and Payam Akhavan.
4. The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, with inclusion
of Amendments as promulgated on October 27, 2004 (NS/RKM/1004/006) (“EC Law”); and the
Agreement between the United Nations and the Royal Government of Cambodia Concerning the
Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic
Kampuchea, June 6, 2003 (“UN Agreement”).
5. Charter of the United Nations (1945), Article 2(1).
6. According to Article 17(1)(a) of the Rome Statute of the International Criminal Court (U.N.
Doc. A/CONF.183/9, entered into force July 1, 2002) a crime is only admissible to the International
Criminal Court if the relevant state is “unwilling or unable genuinely to carry out the investigation
or prosecution.” This is known as the principle of complementarity. The status of ratification of
the Rome Statue of the International Criminal Court is available at:
http://www.un.org/law/icc/statute/romefra.htm.




Justice Initiative                                                                                     31
     The Extraordinary Chambers




     The Khmer Rouge Tribunal:
     Criticisms and Concerns
     Dinah PoKempner examines the many           system at large, under-funded by
     potential pitfalls that could derail the    the international community, and lack-
     Extraordinary Chambers.                     ing even the unequivocal commitment
                                                 of Cambodia’s government. Indeed,
        Cambodia’s Extraordinary Chambers        expectations of the tribunal are so low
     in the Courts of Cambodia (EC) will         in some quarters that it may be judged
     labor under a burden of popular sus-        a success so long as it is perceived as
     picion, whenever it actually com-           doing no actual harm.
     mences its labors. This itself is tragic,
                                                      That it might do actual harm is a
     for so many have for so long hoped
                                                 possibility generally discounted by its
     to see the Khmer Rouge called to
                                                 main foreign proponents, who tend to
                                                 argue that late is better than never, and
                                                 an imperfect tribunal is better than
        Negotiations over the tribunal
                                                 none at all. But while skeptics—who
   have been fraught with such delay,            include many ordinary Cambodians,
objection, and compromise that hope              as well as a good deal of the domestic
                                                 and international human rights and
         for justice is again flickering.        humanitarian community—support
                                                 bringing the Khmer Rouge to justice,
                                                 they are acutely aware of the damage
     account for their monumental crimes.
                                                 a bungled or perverted process may
     Numerous hurdles that stood in the
                                                 wreak.
     way of a tribunal have fallen, including
                                                      The subject of the Khmer Rouge
     the key shift from international recog-
                                                 past has been largely repressed in
     nition of the Khmer Rouge1 to interna-
                                                 Cambodia, where a combination of
     tional condemnation, and the joint
                                                 political pressure to keep the topic
     request in 1997 of Cambodia’s politi-
                                                 closed and the desire of survivors to
     cal leaders for international assistance
                                                 get on with life keep it largely out of
     in prosecuting the Khmer Rouge.
                                                 public discourse.2 Some fear that
     But since that high-water mark, the
                                                 opening a window on that past with-
     negotiations over the tribunal and
                                                 out providing a scrupulously fair
     its establishment have been fraught
                                                 judicial process might revive resent-
     with such delay, objection, and
                                                 ments and violence, although there is
     compromise that hope for justice
                                                 little possibility of the trials reviving
     is again flickering. The tribunal that
                                                 the intermittent civil war that followed
     is emerging is a domestic institution,
                                                 the ouster of the Khmer Rouge from
     vulnerable to the political manipula-
                                                 power. There is also a sense of incom-
     tion that degrades Cambodia’s legal
                                                 plete transition, of the radically

     32                                                                       Open Society
                                                                     Perspectives



inhuman and lawless past segueing            damage on Cambodians, their sense
into the relatively inhumane and law-        of dignity, their effort to restore their
less present, with social recovery           country as part of the international
incomplete and personal security still       community, and their search for
rather precarious Mental health              an understanding of the past that
professionals in Cambodia worry              can lead them to a better future.
about a tribunal’s potential to re-trau-     Cambodian civil society is already hard
matize individual survivors. But oth-        at work to facilitate the success of the
ers also fear the demoralizing effect        tribunal. But its effort may be doomed
on society and Cambodia’s develop-           unless the government, and the inter-
ment if the EC are seen as politically       national community, assumes respon-
directed or compromised. A UN-               sibility for making the bargain they
endorsed tribunal is widely expected         struck over the tribunal actually work.
to work a demonstration of transition
from atrocity to rule of law. If the         The context
tribunal instead reaffirms the grip          Cambodia in the early twenty-first
of political elites on the public memo-      century is an odd case in the lexicon
ry, it will be seen as yet another betray-   of “transitional justice,” as the country
al of Cambodia by the international          has experienced relatively little
community.                                   of either political transition or justice.
    The tribunal will certainly reawak-      The political organization now known
en memory, and with it pain, resent-         as the Cambodian Peoples Party (CPP)
ment, and moral anguish. But                 and led by Hun Sen was initially
whether it will promote insight,             composed of Khmer Rouge deserters
justice, and any sense of repair is          and has continued to incorporate
still in question. To have a positive        them as a way to consolidate its power.
impact, it must do more than convict a       The party has effectively retained
small handful of leaders of the Khmer        administrative and legislative power
Rouge. No one questions the ability          since the Vietnamese ouster of the
of the Cambodian government to               Khmer Rouge in 1979, thanks to its
obtain convictions when it is in its         social control at every level and the
interests to do so. This was accom-          many challenges to electoral democra-
plished by the widely discredited 1979       cy in Cambodia. Among such chal-
show trials in Phnom Penh, organized         lenges were a threatened coup after
with the help of the Vietnamese              the 1993 UN-administered election,
government. This time, the govern-           which forced the election winner,
ment must demonstrate through the            Prince Ranariddh’s FUNCINPEC
tribunal’s operation a shift to norms        party, to share power with the CPP;
of legality, rights, and fairness in a       political violence against independent
political culture that up to now has         politicians including a March 1997
been characterized by impunity,              grenade attack against opposition
patronage, and corruption. To fail in        party leader Sam Rainsy and the
this regard will be to inflict serious       bloody July 1997 coup by Hun Sen


Justice Initiative                                                                   33
      The Extraordinary Chambers



      against Ranariddh; and systematic          months, remarking that the term
      efforts to co-opt or legally derail the    “culture of impunity” had become a
      CPP’s political rivals.                    cliché as applied to Cambodia.5
         Impunity is an element of the               The legal profession in Cambodia
      Cambodian environment almost as            was almost entirely exterminated by
      common as water, and it flows at           the Khmer Rouge. To the extent that
      many levels.3 Since the 1991               courts were re-established by the new
      Paris Accords, the Khmer Rouge have        government, with Vietnam’s assis-
      largely enjoyed impunity through           tance, they were conceived as instru-
      amnesties—legal and de facto—that          mental to political needs. When the
                                                 United Nations Transitional Authority
                                                 in Cambodia (UNTAC) set up in 1992,
  The tribunal will certainly reawaken           it found the legal system a complete
                                                 shambles, with court personnel not
memory, and with it pain, resentment,            only ignorant of law but sometimes
and moral anguish. But whether it will           barely literate, and basic supplies, like
   promote justice is still in question.         pencils and paper, lacking. UNTAC
                                                 oversaw Cambodian accession to basic
                                                 human rights treaties and the creation
                                                 of a rudimentary criminal law. Since
      effectively destroyed the group as a       then, there has been a slow develop-
      resistance force. Many Khmer Rouge         ment of a bar, a legal curriculum, and
      have been incorporated into the            an accreditation process, but judges
      administration and military. Members       and prosecutors remain for the most
      of the government have enjoyed             part apparatchiks, selected for loyalty
      impunity through formal operation          and entirely manipulated by the execu-
      of law as well as practice.4 Instances     tive in cases with any political
      where officials or those with powerful     or patronage dimension. Like the rest
      patrons literally get away with murder     of the government, the justice system
      are commonplace, from the 1977             is notorious for corruption.
      grenade attack on opposition politi-
                                                     Taking into account this context
      cian Sam Rainsy, which killed a num-
                                                 of political violence, entrenched
      ber of his supporters, to the slaughter
                                                 impunity, and the absence of anything
      of villagers in an exceptionally violent
                                                 resembling a legal culture much
      forced eviction in the village of Kbal
                                                 less the rule of law, the Group of
      Spean near the Thai-Cambodian bor-
                                                 Experts appointed by the UN
      der in March 2005. Indeed, the two
                                                 Secretary-General recommended in
      largest Cambodian human rights
                                                 1997 that a tribunal entirely under
      groups published a report in 1999
                                                 international auspices be established
      tabulating hundreds of serious
                                                 to try the Khmer Rouge. This recom-
      instances of unpunished violence
                                                 mendation was rejected that same year
      (mostly extrajudicial executions by
                                                 by the Cambodian government, which
      officials) over a period of twenty
                                                 stated its preference for a Cambodian


      34                                                                      Open Society
                                                                  Perspectives



court with some participation by inter-    tribunal’s independence from the
national legal experts.6                   Cambodian government and also
    Opinion surveys in Cambodia,           exposed a significant number of
however, have found that even in rural     Cambodian jurists to training and
areas people consistently favored          trials of international quality, thereby
international prosecution and trial of     enabling them to raise standards upon
the Khmer Rouge because of mistrust        their return to the ranks of the
of the legal system and the intentions     Cambodian judiciary.
of the political leadership.7 In               Hun Sen rejected this proposal
December 1998, a coalition of over 60      in September 1999. Between
Cambodian non-governmental organi-         Cambodia’s initial appeal to the UN
zations released a statement calling       for help in establishing a tribunal
for an international, UN sponsored         to try the Khmer Rouge on June 21,
tribunal. In January 1999, a coalition
of 18 human rights groups collected
80,000 signatures on a petition in
                                           The legal profession in Cambodia was almost
favor of a UN tribunal, and this coali-
tion, in February 1999, reiterated its     entirely exterminated by the Khmer Rouge.
belief that “only the United Nations
has the power and credibility needed
for justice.”8 The notion of a domestic    1997, and Hun Sen’s rejection of
tribunal is not a point of pride to many   the 1999 UN proposal, several devel-
Cambodians, but to the contrary, a         opments threw into even greater
humiliating reminder that the world        doubt the already equivocal interest
community somehow was unwilling            of the Cambodian government in
or unable to provide the same level of     an independent tribunal. China, a
resources and assurances of fairness       past supporter of the Khmer Rouge,
to them as to the peoples of former        publicly stated its opposition to an
Yugoslavia or Rwanda.                      international tribunal, thereby raising
                                           the prospect of a Security Council
The negotiations and their outcome         veto. On June 15, 1997, Son Sen,
                                           the Khmer Rouge deputy prime min-
The negotiations over a national tribu-
                                           ister and minister of defense had
nal with international participation
                                           already been killed on Pol Pot’s orders
were protracted and rocky. In May
                                           for showing interest in negotiating
1999, UN Special Representative for
                                           with Hun Sen. On July 5-6, 1997,
Human Rights in Cambodia Thomas
                                           the CPP mounted a coup against co-
Hammarberg responded to Hun Sen’s
                                           premier Ranariddh. Pol Pot, “Brother
rejection of an entirely international
                                           Number One,” died in Khmer Rouge
tribunal with a proposal for a “mixed
                                           captivity in 1998. In December 1998,
tribunal” that would utilize a majority
                                           Hun Sen accepted the surrender of
of international judges and an interna-
                                           Nuon Chea and Khieu Samphan,
tional prosecutor. This formulation
                                           the second highest Khmer Rouge
would have both ensured the


Justice Initiative                                                               35
             The Extraordinary Chambers



             leader and Khmer Rouge head of            for future mixed tribunal arrange-
             state respectively, treating them         ments. In February 2000, Secretary-
             as dignitaries and announcing that        General Annan wrote to the
             Cambodians should “dig a hole and         Cambodian government that the
             bury the past and look to the future.”9   UN could only collaborate in a tribu-
             And in March 1999, the last Khmer         nal if there were a majority of interna-
             Rouge leader capable of mounting          tional judges, an independent interna-
             a significant resistance (Chhit           tional prosecutor, guarantees that the
             Chhoeun, better known as Ta Mok)          Cambodian government would arrest
                                                       all indictees on its soil, and that
                                                       pardons, such as that of Ieng Sary,
    Opinion surveys in Cambodia have found             would not be a bar to prosecutions.
that people consistently favored international         The Cambodian government, howev-
                                                       er, incorporated the supermajority
    prosecution and trial of the Khmer Rouge           proposal into a law it passed in 2001 to
  because of mistrust of the legal system and          create the “Extraordinary Chambers”
                                                       for the trial of “senior leaders and
                      the political leadership.        those most responsible for the most
                                                       serious violations of human rights”
                                                       during the Khmer Rouge years. The
             was delivered to Cambodia by              government insisted that this law
             Thailand, effectively ending the civil    would take precedence over any agree-
             war. All the while, Ieng Sary, the for-   ment on cooperation with the UN.
             mer deputy prime minister of
                                                           Citing concerns that the tribunal
             Democratic Kampuchea, lived openly
                                                       would not have guarantees of “inde-
             and comfortably pursuing business
                                                       pendence, impartiality and objectivi-
             affairs, having been pardoned in
                                                       ty,” Secretary-General Kofi Annan
             1996 by King Sihanouk for his 1979
                                                       announced the UN’s withdrawal
             in absentia conviction on charges
                                                       from negotiations with Cambodia
             of genocide.
                                                       on February 8, 2002. An informal
                Faced with Hun Sen’s opposition to     coalition of states, including the
             an international tribunal, in October     United States, France, Japan, and
             1999, the United States proposed a tri-   Australia, worked to overturn the UN
             bunal with a majority of Cambodian
                                                       position over the next two years,
             judges and co-prosecutors. A super-
                                                       beginning with a General Assembly
             majority voting formula was part
                                                       resolution in 2002 requesting the
             of the deal, whereby decisions would
                                                       UN to resume talks based on prior
             require a majority plus the vote of
                                                       negotiations. Although the UN inter-
             at least one foreign judge. The UN,
                                                       preted this mandate to continue to
             which had not been consulted about
                                                       press for a majority of international
             the U.S. proposal, rejected this
                                                       judges and an independent interna-
             arrangement, fearing it was an invita-
                                                       tional prosecutor, France, Japan,
             tion to deadlock and a poor precedent
                                                       Australia, the United States, India,


              36                                                                   Open Society
                                                                    Perspectives



and the Philippines insisted that the          relating to the structure and
UN meet Cambodia’s terms and                   organization of the Extraordinary
undercut the UN position in bilateral          Chambers would fully ensure
dealings with the Cambodian govern-            their credibility, given the precari-
ment. Under political pressure, the            ous state of the judiciary in
UN ultimately agreed to the superma-           Cambodia.12
jority formula in March 2003.
                                               The supermajority arrangement at
                                            the heart of the agreement anticipates,
The terms                                   and indeed now virtually guarantees,
The “supermajority”                         bloc voting by the Cambodian judges,
In a strikingly blunt March 2003
report to the General Assembly,
Secretary-General Annan outlined the
deficiencies of the tribunal agreement      Under political pressure, the UN ultimate-
ultimately forced on the UN.10 After        ly agreed to the supermajority formula.
enumerating the few points in which
the agreement represented progress
on previous drafts,11 he noted:
    . . . I cannot but recall the reports   and consequently places a great deal
    of my Special Representative for        of pressure on international judges
    human rights in Cambodia, who           who are to be picked off a list approved
    has consistently found there to         by the Cambodian government.
    be little respect on the part of        A supermajority is also needed to
    Cambodian courts for the most           block a prosecution at the pre-trial
    elementary features of the right        stage: absent an international vote
    to a fair trial. I consequently         to resolve disputes between the
    remain concerned that these             Cambodian and international co-pros-
    important provisions of the draft       ecutors or co-investigating judges,
    agreement might not be fully            prosecutions will go ahead. But of
    respected by the Extraordinary          course, should the Cambodian govern-
    Chambers and that established           ment endeavor to press a spurious
    international standards of justice,     investigation or prosecution, even
    fairness and due process might          unanimous resistance by the interna-
    therefore not be ensured. ( . . . . )   tional judges of the Pre-Trial Chamber
    I would very much have preferred        cannot stop it from going ahead.
    that the draft agreement provide
    for both of the Extraordinary           Criminal procedures
    Chambers to be composed of a
                                            There is great confusion regarding
    majority of international judges.
                                            criminal procedural law in Cambodia.
    ( . . . . ) Doubts might therefore
                                            The United Nations Transitional
    still remain as to whether the
                                            Authority in Cambodia drafted a very
    provisions of the draft agreement


Justice Initiative                                                                 37
            The Extraordinary Chambers



            basic criminal code that was adopted      who will have little experience of inter-
            by Cambodia’s then-sovereign body,        national law or even rudimentary due
            but the CPP unilaterally adopted          process norms. Nor is it clear whether
            a somewhat inconsistent criminal          the tribunal could decide claims based
            procedure law. While this code’s status   on the Cambodian constitution,
            as binding law enacted by the sover-      given that Cambodia’s Constitutional
            eign power of Cambodia is dubious,        Council (a body with virtually no track
            it has been treated as such by each       record) is the sole venue for such deci-
            successive CPP-dominated govern-          sions under domestic law. Litigants
            ment. A new draft criminal procedure      may wish to challenge current features
                                                      of Cambodian procedural law and
                                                      practice for inconsistency with inter-
                                                      national standards to which Cambodia
             The supermajority arrangement            is a party—however, it is unclear
anticipates, and indeed virtually guarantees,         where such a challenge would be
                                                      heard or how it would be resolved.15
       bloc voting by the Cambodian judges.           Any one of these issues could ensnare
                                                      proceedings in lengthy delay.

                                                      Witnesses and victims
            law is currently under review, and
                                                      Finally, the UN-Cambodia agreement
            should it be adopted by the
                                                      has minimal provisions on witness
            Cambodian government, it is unclear
                                                      and victim protection. This is especial-
            whether that would become the proce-
                                                      ly regrettable given Cambodia’s recent
            dural law for the tribunal, thereby
                                                      history of acute political violence
            changing the rules midstream.13
                                                      and intimidation. The investigating
                The EC Law stipulates that in cases   judges, prosecutors, and Extraordinary
            of uncertainty, “guidance may also        Chambers “shall provide” such meas-
            be sought in procedural rules estab-      ures, which “shall include” but not
            lished at the international level.”14     be limited to in camera proceedings
            But despite this effort to provide        and protection of the identity of a
            an alternate source, untangling the       victim or witness.16
            applicable procedural law will not
                                                          A significant provision, both for
            be easy. For example, it is unclear
                                                      its substance and for the fact it had
            whether under Cambodian law, the
                                                      to be included, is that witnesses and
            EC, as a Cambodian court, would
                                                      experts appearing at the summons of
            be empowered to create new rules
                                                      judges or prosecutors “shall not be
            itself based on international prece-
                                                      prosecuted, detained, or subjected to
            dent, or just what “guidance” would
                                                      any other restriction on their liberty
            consist of. In practice, creating new
                                                      by the Cambodian authorities” or sub-
            procedural law from international
                                                      jected by the authorities “to any meas-
            precedents may be difficult for the
                                                      ure which may affect the free and
            majority of the Cambodian judges
                                                      independent exercise of their func-


            38                                                                     Open Society
                                                                  Perspectives



tions.”17 Voluntary witnesses solicited       An equally important question is
by defense counsel appear not to share     how the tribunal will interpret the
this protection. Defense counsel, how-     ambit of personal jurisdiction in
ever, do enjoy this protection, and        the term “those most responsible.”
the judges, prosecutors, and other         Both the Cambodian government and
personnel of the EC enjoy immunity         foreign states would prefer to keep the
from legal process with respect to their   number of defendants low, to mini-
acts and statements in an official         mize expenses and political tension.18
capacity, even after the termination of    There are political disincentives to
their employment with the EC.              holding any significant portion of the


What could go wrong?                       Both the government and its
The tribunal agreement is predicated       international supporters must be
on the goodwill and commitment             particularly attentive to a number
of both the UN and the Cambodian
government. Without these, even the
                                           of possible undesirable outcomes.
best-designed tribunal would founder.
But given the range of flaws in the
                                           former Khmer Rouge responsible now
tribunal’s structure, it is especially
                                           for past atrocities or upsetting expecta-
important that both the government
                                           tions as to who the likely suspects are
and its international supporters be
                                           by reaching too far down the ranks for
particularly attentive to a number of
                                           defendants, threatening members or
possible undesirable outcomes.
                                           supporters of the CPP, or imperiling
                                           former Khmer Rouge who have cut
Failure to apprehend and prosecute         deals with the leadership. The bottom
Assuming that funds and staff and          line is that the alternative to prosecu-
materials are eventually assembled         tion by the EC is likely to be impunity,
for the tribunal, a question central to    not domestic prosecution. Lower-rank-
the negotiations lingers: whether the      ing defendants may nevertheless
government is actually committed in        share culpability for mass atrocities;
the end to prosecute the remaining         moreover, their indictment and inves-
leaders of the Khmer Rouge. Only           tigation may be needed to assist in
Ta Mok and Duch, the warden of the         building cases against their superiors.
notorious Tuol Sleng prison, are in        The question of how low to go has
custody; the legal effect of Ieng Sary’s   plagued other international and mixed
1996 pardon is still undetermined;         tribunals, which are designed to
and it is still unclear whether the gov-   produce exemplary rather than com-
                                           prehensive justice. Circumscribing
ernment will move effectively against
                                           investigations and prosecutions to an
Nuon Chea and Khieu Samphan, who
                                           excessive degree could undermine the
currently enjoy their liberty.



Justice Initiative                                                               39
    The Extraordinary Chambers



    tribunal’s credibility with the public      draw UN support should the agree-
    and reinforce a sense of impunity           ment not be honored, in reality the
    rather than dismantling it.19               pressures on the UN to put the best
                                                face on a bad situation will be high.
    Gridlock and delay                          No member state that pays for the tri-
    Assuming that the political will to         bunal will be happy to see it collapse.
    apprehend, investigate, and prosecute           Delay is a problem for many courts,
    a credible range of defendants is           and generally works in favor of defen-
    found, there is also the question of        dants. Although the Cambodian gov-
    whether the mix of foreign and local        ernment blames the UN for the delay
                                                in arriving at an agreement, the UN
                                                has reacted promptly (if not favorably)
                                                to most of the Cambodian initiatives.
An equally important question is how
                                                Delay has worked to the CPP’s benefit,
   the tribunal will interpret the term         allowing it to consolidate its power,
           “those most responsible.”            and mitigate and attenuate the politi-
                                                cal consequences of allowing a tribu-
                                                nal to go forward. Delay may be a way
                                                to minimize prosecution, as witnesses
    personnel can function effectively. The     and evidence become scarcer, memo-
    supermajority provisions, as described      ries fade, and potential defendants die
    above, have the potential to snarl each     or become unable to stand trial. The
    part of the tribunal in dispute and         determination of international donors
    appeal, bringing any case to a grinding     to hold the tribunal to a strict three-
    halt. There is also a danger that the       year schedule will also keep up the
    international and Cambodian compo-          pressure to minimize prosecutions.
    nents of the procuracy, investigating
                                                    Even once the tribunal is ready
    judges, and chambers will operate in a
                                                to operate, dilatory actions—deliberate
    disconnected fashion, further delaying
                                                or incidental—will need to be con-
    and diminishing their work. A visibly
                                                trolled by firm leadership if the
    polarized court will compromise its
                                                tribunal is to work. The uncertainty in
    own credibility, to both international
                                                the EC Law governing the tribunal,
    and Cambodian observers. The need
    to avoid this sort of discredit may rein-   the potential for appeal of every dis-
    force the reluctance of other states to     pute between foreign and Cambodian
    openly criticize the tribunal. There        co-prosecutors and co-investigating
    may even be pressure on foreign             magistrates, the uncertainties con-
    judges not to be “spoilers” and to          cerning the handling of failures to
    vote with the Cambodian majority.           reach a supermajority vote may all
    Although Kofi Annan has warned              generate numerous opportunities for
    of the need to speak out and even with-     delay and ultimately frustrate the oper-
                                                ation of the tribunal.



     40                                                                     Open Society
                                                                   Perspectives



The potential to further                    undermine the rule of law, as would
weaken the rule of law                      the Cambodian judiciary’s failure to
                                            incorporate its findings and judg-
There is little doubt that if the
                                            ments into domestic law more gener-
Cambodian government had wished
                                            ally. For the tribunal to accomplish
to constitute a tribunal on its own to
                                            its purpose of realigning Cambodian
try Ta Mok and Duch, and even a few
                                            law with fundamental norms shared
others, it could have done so without
                                            by all nations, the EC will need to
any delay. But it could not have done
                                            produce jurisprudence that draws on
so in a way that would be perceived
                                            international precedent, a practice
either domestically or internationally
                                            that must not only be permitted but
as credible in terms of basic justice.
                                            encouraged.
    If prosecutors and magistrates fail
to competently investigate cases, or if
judges fail to scrupulously and trans-
parently uphold procedural fairness,        The determination of international
the rights of the accused or the law,       donors to hold the tribunal to a strict
the tribunal will be perceived as just
                                            three-year schedule will keep up the
another Cambodian show trial. All too
common features of pretrial process         pressure to minimize prosecutions.
in Cambodia include forced confes-
sions, maltreatment and even torture
of detainees, fabrication of evidence,      Intimidation and obstruction
denying defendants competent coun-          If the EC’s Cambodian personnel do
sel of choice and denying counsel           not have the personal security to exer-
full and prompt access to their clients.    cise some degree of independence,
The public is sometimes barred              it will be difficult to ensure even a
from the courtroom, and often barred        basic level of fairness and respect for
from knowing the evidence in the            rights. In the prevailing environment
case. There is little tradition of robust   of political violence and control, the
defense, and little judicial patience       authorities need not act overtly to
with defense arguments or critical          convey a threat. There may be further
judicial scrutiny of the prosecution’s      risk from persons or parties affected
case. Judges are often ignorant of the      by the trials. The personnel of the EC
relevant law or indifferent to it, and      will need protection not only for them-
sometimes pre-formulated judgments          selves but for their families, including
are read immediately upon a case’s          secure living quarters, freedom of
conclusion.20 Avoiding such abuses          movement, reasonable salaries, access
in the EC will take both education—         to secure communications, and possi-
of judges, the government more gen-         bly other measures. The tribunal must
erally, and the public—and resolve.         also have cooperation, not only in
    A failure to enforce the judgments      arresting suspects, but in securing
and rulings of the tribunal would also      evidence and sites from interference,


Justice Initiative                                                                41
             The Extraordinary Chambers



             and gaining access to officials and         national community will find ade-
             documentation both in Cambodia              quate funds to simply open the doors
             and abroad.                                 of the tribunal and attract the best-
                Trials can also be severely compro-      qualified personnel. But equally
             mised if victims and witnesses refuse       important is where those funds are
             to testify. In the EC, there has so far     deployed, and reallocated to correct
             been little planning for their protec-      emerging problems in the course of
             tion, which needs to extend long            the EC’s life. So far, five international
                                                         staff have been allocated to the inter-
                                                         national co-investigating judge, but
                                                         none to the international co-prosecu-
              Should it become clear that the            tor, possibly because of the limited
Extraordinary Chambers are failing to ensure             role of prosecutors under current
                                                         Cambodian practice. But as the prose-
    fairness and due process, the UN should              cutor will be the initial mechanism
  act on Kofi Annan’s promise to disengage.              for referral of cases for investigation,
                                                         this practice may undermine any seri-
                                                         ous effort to identify those most
                                                         responsible or look beyond the hand-
             before and after trial. The practice        ful of likely suspects.
             of other international and mixed
             tribunals and truth commissions has         Failing to address the needs of survivors
             attested to the importance of attention
                                                         Even if the tribunal operates in accor-
             to basic issues, such as providing a
                                                         dance with the best principles of legal-
             secure and neutral location for the
                                                         ity and fundamental fairness, within
             court, separate entrances for victims
                                                         the terms of the agreement and statute
             and witnesses (so they may control
                                                         that delineate its powers, it will need
             how they encounter defendants or
                                                         additional support for its work to be
             their supporters), counselors during
                                                         meaningful to survivors.
             the course of the trial, monitoring and
             social services afterwards, and options         The most common response of
             for relocation. In this regard, it is not   Cambodians to the prospect of a tribu-
             reassuring that the Cambodian gov-          nal is the expectation that it should
             ernment has fixed the location of the       tell them why they have suffered the
             tribunal on a military base outside         horrors of the Khmer Rouge years.
             Phnom Penh, given that the military         This is an urgent desire, as almost all
             enjoys unparalleled impunity for abus-      open discussion of responsibility for
             es and has often been the instrument        the Khmer Rouge’s rise and actions is
             of political retaliation.                   avoided or suppressed. In the wake of
                                                         open discussion, far-fetched and con-
                                                         spiratorial theories of history thrive,
             Under-resourcing
                                                         including skepticism of the younger
             So far the issue receiving the most         generation that these horrors tran-
             attention has been whether the inter-       spired or were as bad as their parents


             42                                                                        Open Society
                                                                    Perspectives



describe, or ideas that somehow              brought such devastation to Cambodia,
Vietnam inflicted the Khmer Rouge            and what happened to them.
on Cambodia.                                    The operations of the Extraordinary
    But any given trial is a partial nar-    Chambers, even if characterized by
rative, centered on the responsibility       integrity, are likely to provoke extreme-
of a particular individual, and cannot       ly painful memories among both
present the whole picture. Indeed, in        participants in the trials and the
the EC, the necessary foreshortening         greater population of survivors. Some
of a complex historical picture to the       recurrence of trauma is likely, as well
particular stories of a small number         as a resurgence of resentment, guilt,
of perpetrators is likely to increase sus-   mourning, depression, and even a
picions that key parts of the narrative      desire for revenge. Social work and
are being concealed. Moreover, the           mental health programs will be neces-
events and decisions that occur in the       sary, not only at the level of partici-
course of a trial are often difficult        pants in the trials, but also aimed at
for non-lawyers to understand. Even          society more generally, again through
a positive development, such as the          programs that can reach survivors
tribunal recognizing a defendant’s           both directly and through popular
rights, could easily be misinterpreted       media. To make such outreach suc-
by a public unused to the concept            cessful at ameliorating the negative
that defendants should have legally          reactions trials may generate, the
respected rights.                            government will have to find ways to
    This points to the need for a public     tolerate and protect the popular
outreach program that can contextual-        expression of divergent and even
ize and explain the tribunal to the          hostile reactions, while protecting
Cambodian public. Ideally, the tribu-        people from discrimination, violence,
nal itself would perform some of             or vigilantism.
this function, but it is more likely that
NGOs and the media will. To do this
                                             Maximizing the possibility
effectively, they must have both
resources and access to popular
                                             of success
media, and particularly broadcast            What are the responsibilities of
media and video, given the relatively        the various actors in assuring that
low literacy rates and the unavailabili-     these harmful outcomes are avoided
ty of most newspapers outside of             and maximizing the tribunal’s chances
Phnom Penh. The rulings and find-            of success? On the part of the
ings of the tribunal should also be          Cambodian government, the great
publicized through the national educa-       challenge will be curbing potential
tion system—from the lowest grades           interference with the EC, both by
to the highest. The national curricula       its own members and by others.
currently skirt the entire issue of how      Interference can be subtle or gross,
the Khmer Rouge came to power, who           embodied in public criticism intended
was responsible for the policies that        to convey a threat, or in private


Justice Initiative                                                                  43
The Extraordinary Chambers



directive. The other responsibility of     withdrawing its cooperation and assis-
the Cambodian government is cooper-        tance from the process.”21 Before such
ation with the tribunal, the interna-      a point is reached, the UN should
tional community, and civil society        attempt to resolve problems through
institutions. This cooperation will        negotiation, but not through political
entail facilitating the tribunal through   compromise.
arrests, enforcement orders, protec-           The international community,
tion of evidence, protection of victims    having forced this structure on the
and witnesses, and opening space           UN, bears a tremendous responsibility
for public discussion, outreach            for making it work. Of necessity, states
and debate. The Cambodian govern-          will have to bear the greatest burden
ment should continue to invite the         in ensuring the tribunal has the
International Committee of the Red         resources it needs and that support
Cross, but also local human rights         programs are in place to maximize
monitors, to visit detainees. It should    its public impact. Donor governments
also welcome and facilitate the efforts    will have to exercise keen scrutiny of
of non-governmental groups to pro-         the entire process, beginning now
vide public education and support          with the selection and allocation of
services to the tribunal.                  personnel, to ensure the Tribunal has
    The UN should commit itself to         integrity and can deliver on funda-
the greatest possible transparency         mental fairness. States that played a
to increase public confidence in the       role in the history of the Khmer Rouge
tribunal. The accounts of the tribunal,    should not use their influence to
resource allocations, contracts, back-     distort or curtail the inquiry of the
ground of nominees to official posi-       tribunal, but rather should cooperate
tion, and details of operations should     in providing access to witnesses and
be as open to public scrutiny as possi-    evidence. The international communi-
ble, taking into account the need          ty should work to support UN efforts
for security. The UN should facilitate     to guarantee the integrity and high
the exposure of EC personnel to            standards of the process, and not
other UN-sponsored tribunals and           undermine these by pressuring the
their decisions and operations.            UN to silently tolerate further compro-
    Should it become clear that the        mises.
Extraordinary Chambers are failing             Even with its slow birth and flawed
in their basic duty to ensure fairness     structure, the EC could yet overcome
and due process, the UN should act         low expectations and provide the long-
on Kofi Annan’s promise to disengage.      absent transition to justice that
In his report, he warned: “It is worth-    Cambodians await. But to do so, it will
while noting that, under the terms         need the best efforts of the Cambodian
of the draft agreement, any deviation      government, Cambodian and interna-
by the Government from its obliga-         tional civil society, and the internation-
tions could lead to the United Nations     al community working together.



44                                                                       Open Society
                                                                                   Perspectives



Notes
Dinah PoKempner is general counsel of Human Rights Watch.

1. After the Vietnamese invasion of Cambodia in 1979, the Khmer Rouge were routed. However in
the succeeding years, the Khmer Rouge continued to be viewed as the legitimate government of
Cambodia, rather than the Vietnamese-backed regime actually in power.

2. Condemnation of the Khmer Rouge, on the other hand, has been a staple of political discourse
since Democratic Kampuchea’s overthrow in 1979. Every member of the resistance or political oppo-
sition, regardless of political affiliation, was described as “KR” and the practice continued somewhat
after the Paris Accords, with the accusation, for example, that FUNCINPEC was supporting the KR.
In more recent years, some nongovernmental groups and scholars have tried to jump-start commu-
nity discussion over what Cambodians should do about the Khmer Rouge past, and have included
former members of the Khmer Rouge in these dialogues.

3. For a discussion of the tribunal as a means of combating impunity, see Dinah PoKempner, “The
Tribunal and Cambodia’s Transition to a Culture of Accountability,” forthcoming.

4. In October 1994, the Law on Co-Statute for Civil Servants of the Kingdom of Cambodia was
enacted. Under article 51, judges wishing to prosecute civil servants were required to obtain permis-
sion from either the Council of Ministers if a senior official was in question, or from the head of the
relevant ministry for lower ranking civil servants. The principle of immunity was in practice extend-
ed to military personnel as well, although they are not included under the terms of the law. In the
law’s application, ministerial officials blocked a significant number of prosecution requests, caused
others to languish or fail because of extensive delay in approval, and the requirement of approval
simply inhibited going forward with other possible cases. In 1999, the law was amended to merely
require advance ministerial notification, but problems in prosecuting officials persist. See ADHOC,
LICADHO, and Human Rights Watch, “Impunity in Cambodia: How Human Rights Offenders
Escape Justice,” A Human Rights Watch Short Report Vol. 11, No. 3(C), HRW: New York, (May 1999)
25-26.

5. “Impunity in Cambodia,” 7.

6. For more on the history of negotiation of the EC, see Craig Etcheson’s article in the present issue
of Justice Initiatives.

7. See Laura McGrew, Truth, Justice, Reconciliation and Peace in Cambodia: 20 years after the Khmer
Rouge (February 2000), full report available from the author, lamcgrew@igc.org.

8. Cambodian Human Rights Action Committee, Press release, February 21, 2002, copy on file with
author.

9. Chris Fontaine, “Cambodia Premier Says No to Trial,” Associated Press, December 28, 1998.

10. Agreement between the United Nations and the Royal Government of Cambodia Concerning the
Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic
Kampuchea, June 6, 2003 (“UN Agreement”).

11. These were the acknowledgment that the agreement between the U.N. and Cambodia would have
the status of a treaty and thus trump domestic law provisions enacted prior or subsequently; that a
simpler two-tier system had been substituted for a cumbersome three-tier appellate structure, and
that certain measures to improve procedural fairness would be implemented, including the require-
ment that the tribunal respect international standards of justice, fairness and due process of law, as
set out in articles 14 and 15 of the International Covenant on Civil and Political Rights. Report of the
Secretary-General on Khmer Rouge trials, paras. 24-27, A/57/769, 31 March 2003 [ “Annan Report”].

12. Annan Report, paras. 28-30.

13. The appellate chamber of the tribunal, for example, is to “apply existing procedures in force,”
which may change as the law does. Art. 36 of the Law on the Establishment of the Extraordinary
Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period



Justice Initiative                                                                                    45
The Extraordinary Chambers



of Democratic Kampuchea, 10 August 2001, NS/RKM/0801/12 [translation by Council of Jurists]
available at http://www.yale.edu/cgp/KR_Law_trans.06.09.2001.html.
14. EC Law, Art. 12.
15. For example, reports of the judiciary police are deemed to be true and accurate in the absence
of directly contradictory evidence, and judges often question defendants before hearing the prosecu-
tion’s case, both matters that would contravene the presumption of innocence. For a discussion of
these and other procedural issues that should be addressed with respect to the Extraordinary
Chambers, see Sok Sam Oeun, Soeun Visal and Scott Worden, “Memorandum: Key Issues Relating
to Rules and Procedures of the Extraordinary Chamber,” May 6, 2004, on file with author.
16. UN Agreement, Art. 23. For more on victim protections in the EC, see Susana SáCouto’s article
in the present issue of Justice Initiatives.
17. UN Agreement, Art. 22.
18. For an excellent analysis of the political interests in artificially limiting the scope of prosecutions,
see Steve Heder, “Politics, Diplomacy, and Accountability in Cambodia: Severely Limiting Personal
Jurisdiction in Prosecution of Perpetrators of Crimes Against Humanity,” Draft on file with author.
19. Steve Heder has pointed to the complex nature of responsibility for atrocities under the Khmer
Rouge, and the considerable degree of lower-level discretion in implementing fairly general direc-
tives from the top to execute various categories of “enemies,” defined in elastic terms. See Steve
Heder, “Reassessing the Role of Senior Leaders and Local Officials in Democratic Kampuchea
Crimes: Cambodian Accountability in Comparative Perspective,” in Jaya Ramji and Beth Van
Schaack (eds.), Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian
Courts, Lewiston: Edwin Mellen Press, (in press, 2005). See also Steve Heder’s article in the present
issue of Justice Initiatives.
20. Brad Adams, “Cambodia’s Judiciary: Up to the Task?” in Jaya Ramji and Beth Van Schaack
(eds.), Bringing the Khmer Rouge to Justice.
21. Annan report, para. 30.




46                                                                                           Open Society
                                                                 Perspectives




Memory, Justice and Pardon:
What Does it Take to Heal?
Filmmaker Socheata Poeuv takes a per-     in comparison to my father’s turmoil.
sonal look at the nature of forgiveness   The Khmer Rouge affected my life
and the role of the Extraordinary         (they were the reason my parents
Chambers in facilitating it.              married), but I am not a victim. While
                                          I wondered if the encounter with
“I have nothing to say to the Khmer
                                          the ex-Khmer Rouge Son Soeum and
Rouge,” my father said. I didn’t know
                                          Mom Tep would be useful for me at
what to say to them either, but I was
                                          all, I saw in my father’s face a lifetime
interested in hearing their position.
                                          of hurt and anger as we approached
I had contacted the Documentation
                                          Soeum.
Center of Cambodia almost a year ago,
asking for the names of former cadres         Soeum was a Khmer Rouge deputy
who presided in Pursat province where     chief, in charge of 200-300 families.
the Khmer Rouge held my family.           Though he says he never killed with
                                          his own hands, he had the authority
   On the long drive to their village,
                                          to decide who was killed outright
I didn’t tell my father where we were
                                          and who was starved. His neighbor,
going. He thought we were headed
                                          Mom Tep, was in charge of the local
to the site of the Khmer Rouge camp
                                          “hospital.” The Khmer Rouge believed
where he lost four years of his life.
                                          modern science corrupted society.
I had yet to tell him we were going to
                                          They killed nearly all of the doctors
make a detour.
                                          and scientists in the country and
   To be honest, I was scared to tell
                                          peasants like Tep replaced them.
him. How would he react? Would he
                                          She invented and manufactured
feel entrapped? Would he stay in the
                                          “medicine” out of various roots and
car and refuse to meet them?
                                          powders, and she buried victims her-
   When the car slowed to a stop,         self. Thousands died. When I asked
I had to end my procrastination.          her if it was easier to bury a child or
   “Pa, I have something to tell you.     an adult, she said children were easier
When we get out of the car, we’re         to bury because you only have to dig
going to meet two ex-Khmer Rouge          a small grave.
and interview them. Will you meet             I asked each of them if they were
them with me?”                            sorry, if they were haunted by the
   He paused for a moment.                memory of what they had done. I
   “Yes, let’s go. I want to see their    asked them about what they do to
faces.”                                   assuage their consciences. They
   I was nervous about meeting them       expressed pity for the dead, but
and I knew that my emotions paled         neither took responsibility for their


Justice Initiative                                                              47
     The Extraordinary Chambers



     actions. They explained that if they did   If we punish, can we forgive? What
     not obey orders from above, they also      will forgiveness achieve? What does it
     would be killed.                           look like?
         Before the interview, I had won-          My family’s Khmer Rouge experi-
     dered if these cadres, who agreed to       ence is both remarkable and common.
     talk about their crimes, would seek        My parents left their homes 31 years
     forgiveness. But they never did.           ago. It was April 17, 1975 when the
         The work of healing a country real-    Khmer Rouge toppled the Cambodian
     ly happens inside each Cambodian.          government. The Khmer Rouge forced
     As the Cambodian government and            every urban dweller out of his or
     the international community struggle       her home.
     to find justice and healing, individual       That day, my parents were still
                                                strangers to one another and both
                                                happened to be in Phnom Penh.
  As the Cambodian government and               My mother and her young family
                                                were in their sewing shop. She was a
the international community struggle
                                                rich Chinese-Cambodian who married
to find justice and healing, individual         another rich Chinese-Cambodian.
      Cambodians must do the same.              They had a comfortable life in lovely
                                                French colonial Phnom Penh. My
                                                father had just deserted from the newly
                                                defeated Lon Nol army. The Khmer
     Cambodians, like those in my family,       Rouge army had pushed my father’s
     must do the same. For each of us, it       army toward Phnom Penh where
     is a different journey. For a very long    soldiers like him abandoned their
     time, I was stuck on the question:         posts in defeat and tried to blend in
     “What does it mean for my family or        with the city dwellers. He assumed a
     me to forgive the Khmer Rouge?”            new identity as a pond spinach seller.
         My entire family lives in Dallas          My mother and father, along with
     now. They have waited their lifetimes      millions of other Cambodians, poured
     to see justice brought to the Khmer        out of the city and walked toward
     Rouge. Although my life did not begin      an unknown destination. Even though
     until after the Khmer Rouge fell           they didn’t know each other, I wonder
     in 1979, I also wait for justice. I have   if they passed one another or
     been waiting for the authority of          exchanged glances on the long walk
     governments to say unequivocally           that began that day. My father walked
     that the Khmer Rouge will be pun-          alone with the clothes on his back.
     ished and that the world cannot let        My mother walked with two small
     such inhumanity go undisturbed.            children, a husband and all the pos-
         What is the best way for an entire     sessions she could carry.
     country victimized by its own country-        They, like every Cambodian who
     men to move on? Is it enough               was not summarily executed, were
     to remember or must we punish?             assigned to a labor camp. The Khmer


     48                                                                     Open Society
                                                                 Perspectives



Rouge believed they could restore         nism. Other children became soldiers,
Cambodia to its preeminence during        forced to spy on their parents and
the Angkor period 800 years earlier       in some cases execute them.
by destroying everything modern.             When their mother died, my moth-
They made everyone a slave to the         er pledged that she would care for
land and executed anyone deemed           the girls. “No matter what they tell
an enemy. My parents toiled from          you,” she said, “remember who your
dawn to dusk in the rice fields or dig-   family is. I am your family and I will
ging ditches. They ate two communal-      always take care of you.”
ly served meals a day. In the dry sea-       Around this time, the Khmer Rouge
son there was less and less food.         forced my parents, two strangers, to
When there was no food, the Khmer         marry. This was a common Khmer
Rouge served a rock of salt.
    When I asked my father what was
the worst thing about living under
the Khmer Rouge, he told me it            Around this time, the Khmer Rouge forced
was not being allowed to talk. The
                                          my parents, two strangers, to marry.
Khmer Rouge controlled every aspect
of his life—where he lived, what he
did, what he ate, whom he lived with,
and what he said. The Khmer Rouge         Rouge practice to dissolve class distinc-
banned books, watches, calendars and      tion. They even forced female members
dogs. They were arguably the most         of the Royal family to marry handi-
controlling government in recorded        capped Khmer Rouge cadres. In my
history.                                  parents’ case, my father was a dark-
    My mother’s parents died, followed    skinned Cambodian from a rice-farm-
by her husband, her daughter and a        ing family and my mother was a light-
slew of brothers, sisters, nieces and     skinned Chinese Cambodian from an
nephews. Because they came from the       entrepreneurial family.
elite class, the Khmer Rouge treated          Ma told me, “I knew whatever
them considerably worse than others.      happened, I would leave my country.”
    The two little girls who would be     Because her first husband and daugh-
raised as my sisters were actually        ter died in the early years of the Khmer
my mother’s nieces. Their beloved         Rouge regime, she was certain her
mother died of starvation and their       toddler son Bros would die of malnu-
father was taken away for execution.      trition like the others. When the
The Khmer Rouge destroyed their           Vietnamese invaded and ousted the
family and tried to replace it with       Khmer Rouge, my mother knew
comrades. They told Mala and              she would need help for her mission.
Leakhena that they no longer belonged         My parents then stayed together
to their parents. My two sisters were     even after the Khmer Rouge fell.
sent to a distant children’s camp where   Pa agreed to find her adopted daugh-
they were indoctrinated in commu-         ters and be a father to her dying son.


Justice Initiative                                                              49
           The Extraordinary Chambers



           In return, my father, an orphan, got          Most Cambodians don’t want to
           the family he had always wanted.          remember the Khmer Rouge years. It
              After the Khmer Rouge fell, the        is too painful. The average Cambodian
           labor camps were emptied and people       is too poor and too busy trying to feed
           poured into the countryside looking       his family to think about their legacy.
           for other survivors. My parents           In fact, I am learning that the outside
           searched town to town for months for      world is more fascinated by the Khmer
           my two sisters. My father found them,     Rouge past than Cambodians are.
                                                         Within Cambodia, there seems to
                                                     be no broad movement to remember
                                                     the genocide. While the Jewish com-
                                                     munity proclaims, “we must not
Most Cambodians don’t want to remember               forget,” Cambodian Prime Minister
  the Khmer Rouge years. It is too painful.          Hun Sen said, “we should dig a hole
                                                     to bury the past.”1 My cousin in
                                                     Cambodia told me that when she
                                                     told her children what she survived,
                                                     they could hardly believe her. There
           by chance, in a field picking potatoes.   are even rumors throughout the coun-
              At night, he smuggled them and an      try that the Vietnamese are responsi-
           aunt around landmines, gunmen and         ble for the deaths of nearly 2 million
           the bodies of the dead. The journey       Cambodians. Last year—for the first
           took three days, eventually ending in     time ever, and more than 25 years after
           the safety of a Thai refugee camp.        the fall of the Khmer Rouge—the
              My father then turned around and       Cambodian government observed a
           made the trip not once, but three more    moment of silence to commemorate
           times: a second trip to carry my sick     the dead.
           brother and lead my pregnant mother,
                                                         However painful it is to remember,
           a third trip for a sewing machine, and
                                                     I never want to forget what happened.
           a fourth trip for more of my mother’s
                                                     After interviewing the two Khmer
           family. My father led eight people
                                                     Rouge cadres, my father and I set out
           across the border to Thailand, nine if
                                                     to find the Khmer Rouge camp where
           you count me in my mother’s womb.
                                                     my parents were held.
              I am making a documentary called
                                                         Our 4x4 turned off of the paved
           New Year Baby about my family’s
                                                     highway on to a country road, kicking
           heroism. For decades, they kept
                                                     up red dust that coated our windows.
           many secrets surrounding their story.
           They are still torn about talking now     My 66 year-old father was physically
           for the first time. Their experience is   and emotionally spent after the inter-
           important and I want to memorialize       views earlier that day. I was asking him
           their story to honor their sacrifice      to remember. “Pa, we’ll just keep driv-
           and survival.                             ing. Tell us if you recognize anything.”
                                                         “No, nothing looks familiar.” he


           50                                                                    Open Society
                                                                    Perspectives



was telling me. “I don’t remember any-      “But seeing her now, she seems at
thing.”                                     peace. There’s no need to disturb her.”
   The sun was setting and I was wor-          When I returned to the America,
ried that we wouldn’t have enough           I asked my entire family if they con-
time to shoot before dark. Just relax       sidered forgiving the Khmer Rouge.
and try to remember, I pressed him.         My sister Mala says that as a Christian,
   The top of a white concrete struc-       she knows that she should forgive,
ture appeared over the trees. Wait, my      but isn’t sure who to forgive. My moth-
father said, that’s the Buddhist temple.    er said, “I’ve learned how to forgive. I
We turned toward it.                        can’t stay angry for the rest of my life.”
   We exited the car and walked                In talking with a producer of my
toward a pleasant little grove of flower-   documentary recently, I asked out
ing trees. The land was empty save          loud: “I want to know what it means
for the single Buddhist temple, or wat.     for me to forgive the Khmer Rouge.”
During the Khmer Rouge, Buddhism            He said to me, “You make the mean-
was banned and many monks were              ing. What does it mean to you?”
executed. The rest were defrocked. The         Suddenly, I saw that a number
Khmer Rouge turned temples into             of reasons were stopping me from
shelters, hospitals, or storage depots.     forgiving the Khmer Rouge and the
   This particular wat had been             cadres I had met.
restored as a working temple. There            First, I did not understand that
were no buildings, no signs, and no         I needed to forgive. I believed they
houses from the Khmer Rouge years.          harmed my family and not me. But the
Everything the Khmer Rouge built was        truth is that every Cambodian carries
wiped away. Someone didn’t want any         the legacy of the genocide. My life has
reminders left of that era.                 been strongly affected by its horrors.
   My father suddenly remembered            Every Cambodian must confront the
where my aunt, Mala and Leakhena’s          Khmer Rouge past.
mother, was buried. We made our                Second, I did not believe that these
way toward a wrecked concrete plat-         two Khmer Rouge cadres deserved
form with two holes in it. She is laid      forgiveness. They never sought for-
near an old latrine. My first thought       giveness from me. Yet I can offer
was, “what an undignified place to          forgiveness whether I think they
bury a her.” Then I realized someone        deserve it or not. Who am I to decide
buried her there because they intend-       who in the world deserves it and who
ed to find her one day. What a gift         doesn’t? Forgiveness is a gift.
it was to be buried there instead of a         Third, I was reluctant to forgive
mass grave. How many forgotten              because I thought it would mean that
graves must lie around us? My aunt is       in some way I was condoning their
now found, visited and remembered.          acts. But I now realize that one does
   “We thought about moving her             not follow from the other. In fact,
remains to rebury her,” my father said.     by bringing attention to the Khmer


Justice Initiative                                                                  51
The Extraordinary Chambers



Rouge atrocities through my docu-                  the same town or even the on the
mentary and other media, I hope                    same road as their perpetrators.
to move a critical mass of people to               Each person must come to his or her
support the trials.                                own conclusion.
   I choose to forgive them. I will                    I am committed to keeping the
write a letter to those two cadres I met           memory of the Khmer Rouge atroci-
in January. I will tell them that I                ties alive through my documentary
forgive them and I am no longer their              and by spreading my family’s story of
victim. I will have it translated into             love, joy and pardon. I hope the world
good Khmer and send it to them.                    knows the horror men can create so
   I recognize that it must be easier              that we may avoid it. It may be the
for me to forgive than it is for other             most important story I will ever tell.
Cambodians. I benefited from my                        In addition, as long as hope for the
family’s sacrifices. America has                   Khmer Rouge trial is alive, forgiveness
offered us a wonderful life while most             is possible. As long as I cling to mem-
Cambodians are very poor and lead                  ory and press for justice, I can forgive.
much harder lives. Some live in



Notes
Soucheata Poeuv was born in Thailand after her family fled the Khmer Rouge. She is director and
producer of the documentary film “New Year Baby.”
1. Chris Fontaine, “Cambodia Premier Says No to Trial,” Associated Press, Dec. 28, 1998.




52                                                                                   Open Society
                                                                           Players



PLAYERS
The Senior Leaders and
Those Most Responsible
Steve Heder examines the challenges         “probably” based on past experience
facing the Extraordinary Chambers,          of the Cambodian judiciary, which
including the question of who should        is so lacking in impartiality and inde-
be tried.                                   pendence that a fair trial in politically
                                            charged cases has been virtually
Two reasons are generally given for
                                            impossible. In only one instance in
proceeding with the Khmer Rouge
                                            the past decade was a court trying
tribunal, despite its flaws. The first
                                            a politically sensitive case allowed to
is that if it does not go ahead, the
                                            do the right thing—to weigh the
surviving men and women responsi-
                                            evidence and make judgments based
ble for the crimes committed under
                                            on evidence alone.2
Communist Party of Kampuchea
                                                For most observers, this historical-
(CPK or Khmer Rouge) rule will either
                                            ly-based concern is buttressed by a con-
go unpunished, remain indefinitely
                                            viction—also borne of experience—
in detention without trial, or be sum-
                                            that the dominance of politicians over
marily convicted in domestic trials: all
                                            the courts is beyond short- or mid-term
unacceptable outcomes. The second
                                            correction through “capacity-building”
is that although there is a vast—albeit
                                            programs. These have been attempted
largely lost—potential for improve-
                                            in Cambodia for more than a decade,
ment in both the law and the agree-
                                            with so far negligible results, as most
ment establishing the court, there is
                                            donors now increasingly realise and
nothing fundamentally wrong with
                                            publicly state.3 The fundamental prob-
either, on paper, in terms of human
                                            lem is not a lack of knowledge or train-
rights protections or truth-seeking
                                            ing within the judiciary—although
objectives.1 There are, however, four
                                            more of both is sorely needed—but
problems that advocates of going for-
                                            rather the determination of key politi-
ward with the court must recognize.
                                            cal players to prevent training and
                                            knowledge from being put to use
Political influence                         against their fundamental political and
The first problem is that the tribunal      economic interests.
will probably conduct only approxima-           Two recent incidents indicate
tions of fair trials, given the very real   things have not changed in this
potential for illegal interference by       regard, and may indeed be getting
politicians, including Cambodian            worse. The absurd judicial shenani-
government officials and diplomats          gans revolving around the murder
representing other governments. I say       trial of anti-government union leader


Justice Initiative                                                                 53
     The Extraordinary Chambers



     Chea Vichea in 2004, resulted in the      (EC) is politically predetermined—
     August 2005 conviction of two men         with the intention of shielding individ-
     who—by all available evidence—were        uals now in positions of authority,
     far from proven guilty and are widely     not so much from prosecution, as
     seen as framed and imprisoned to          from embarrassing scrutiny in the
     protect the real assassins.4 The second   testimony of their former associates
     was the judicial reversal of the Bar      should the latter be prosecuted.
     Association’s October 2004 election       The texts of both the EC Law and
     of human rights defender Suon Visal       the UN Agreement are acceptable,
     as president, which, when it was over-    if not unproblematic, in their formal
                                               restriction of jurisdiction to “senior
                                               leaders . . . and those who were most
                                               responsible” for Khmer Rouge
   The tribunal will probably conduct          crimes.7 The focus on senior leaders
    only approximations of fair trials,        is defensible, especially as the law also
                                               makes possible prosecution of the
given the very real potential for illegal      second category of suspects. The prob-
           interference by politicians.        lem is that negotiations on the court
                                               have been accompanied by the inten-
                                               tion (both stated and unstated) to limit
                                               prosecutions to a handful of senior
     turned by the Supreme Court in June       Khmer Rouge leaders and a few other
     2005, was immediately followed by         notorious perpetrators of crimes,
     criminal prosecution against Visal.5      most notably the leading cadre of
     This attempt to keep the previous         the CPK central security office, the
     incumbent, Ky Tech—the govern-            Phnom Penh torture center known
     ment’s preferred candidate—in place       as S-21, or Tuol Sleng. The evidence
     almost caused the Bar Association         suggests, however, that “those most
     to collapse. At the same time, there      responsible” could include other
     is every reason to believe that, left     Khmer Rouge cadre who should,
     to do their jobs in peace, many           according to a literal interpretation of
     Cambodian judges and lawyers are          the law, be candidates for prosecution.
     perfectly capable of weighing up evi-
                                                   A first question is: how many?
     dence and of exercising independence,
                                               A glance at the history of the Khmer
     and indeed some are eager to do so,
                                               Rouge may help find the answer.
     given the chance.6
                                               When the CPK was in power, its
                                               senior leadership comprised some
     The candidates for prosecution            20-30 members of the formal
     The second problem is that there is       decision-making and policy-setting
     good reason to believe that some in       Central Committee, based in the
     Cambodia wish to ensure that the list     capital, Phnom Penh. In addition,
     of suspects tried in the Extraordinary    a corps of powerful cadre at both
     Chambers in the Courts of Cambodia        the central and local level numbered


     54                                                                     Open Society
                                                                         Players



perhaps 1,000 persons. Of the original      2002), and evidence to support their
1975 leaders and corps of cadre,            prosecution continues to build. They
maybe fewer than half survived the          are:
purges that began to devastate the              Nuon Chea, deputy secretary
Party in 1976 and proceeded in waves        of the CPK Central Committee, now
through 1977 and 1978, and quite a          living in the old Khmer Rouge strong-
few of those who made it through to         hold of Pailin, on the Thai-Cambodian
the end of the regime have since died.      border.
Even if the notional jurisdiction of            Ieng Sary, deputy prime minister
the EC were to extend down to the           for Foreign Affairs and Central and
most important local level, the district,   Standing Committee, now living in
it is likely that no more than a few        Phnom Penh.
hundred responsible individuals are
still alive. The definitions “senior
leaders” and “most responsible,”
together with the available evidence,
                                            Left to do their jobs in peace, many
would determine how many of these           Cambodian judges and lawyers are perfectly
could be legally targeted for serious       capable of exercising independence.
investigation, but my (very rough)
guess is that no more than 60 cases
would fit into these categories, includ-
ing perhaps 10 senior leaders and 50           Khieu Samphan, State Presidium
of their most responsible subordi-          chairman of Democratic Kampuchea
nates, i.e., those local leaders against    and Central Committee member, now
whom there is specific evidence of          with a home in Pailin.
individual responsibility for large-           Ta Mok, zone secretary and Central
scale crimes.8                              and Standing Committee member,
    A perhaps more important ques-          currently in custody in Cambodia,
tion is: who will be prosecuted?            charged with crimes against humanity
The Documentation Center of                 and other crimes.
Cambodia recently republished a                Sou Met and Meas Mut, CPK
slightly revised version of a paper         Military Division chairmen, now with
I authored in June 2001 together with       residences in Batdambang province,
the lawyer Brian Tittemore, entitled        northwestern Cambodia.
Seven Candidates for Prosecution,9             The report also spoke of the mas-
which named seven senior leaders—           sive evidence against another candi-
all alive at the time—against whom          date for prosecution, Kaing Khek Iev,
there was evidence of culpability in        known as “Duch,” who is in custody
the Documentation Center’s archives         with Ta Mok and charged with similar
of Khmer Rouge documents. Six of            offenses.
those seven are still alive today              These are the clearest candidates
(the seventh, Kae Pok, a member             for prosecution. The others, including
of the Central Committee, died in


Justice Initiative                                                              55
       The Extraordinary Chambers



       less notorious central leaders and local   within and outside Cambodia—is a
       cadre, are probably best not named at      myth and a red herring. It appears
       this time, as doing so might prompt        to be perverse wishful thinking on
       them to go into hiding or take other       the part of some Cambodians and for-
       steps to avoid arrest and trial.           eigners whose opposition to the cur-
          There are also a number of individ-     rent regime on other grounds clouds
       uals who are unlikely to be candidates,    their judgment and tempts them to
       regardless of how expansively the tri-     engage in a witch-hunt.11 Even if the
       bunal’s jurisdiction is interpreted.       truth, the whole truth, and nothing
       In 1998, fellow Cambodia scholar           but the truth about “those most
       Craig Etcheson and I issued a state-       responsible” were to be exposed, it is
                                                  extremely unlikely to bring the gov-
                                                  ernment tumbling down or tear socie-
    The idea that there might be highly           ty apart, the doomsayers notwithstand-
                                                  ing. Again, the possibility of following
powerful suspects holding senior posts            the letter of the law and spirit of the
  in the present government is a myth.            agreement exists.

                                                  Clarifying the past
       ment declaring that we were aware of       A third problem concerns the much
       no evidence implicating Hun Sen in         broader issue regarding the truth
       serious Khmer Rouge crimes, a state-       about the Khmer Rouge period. If the
       ment still to be found on various          EC prosecutions are limited by politi-
       Cambodian government websites.10           cal factors, rather than impartial appli-
       Several years on and after tens of thou-   cation of the text of the EC Law—and
       sands of pages of documents and            if the trials are not conducted fairly
       several thousand interviews, this state-   and independently12—they are unlike-
       ment is still true. Indeed, to my knowl-   ly to add very much to our knowledge
       edge, there is no one in the famously      and understanding of what happened
       huge 2004 Cambodian cabinet who            under Khmer Rouge rule and why.
       belongs in the category of “those most     Above all, they are not likely to grapple
       responsible” for Khmer Rouge-era           well with one of the main historical
       crimes. In addition to Hun Sen, those      questions surrounding Khmer Rouge
       against whom no such evidence has          crimes, namely, the extent to which
       been adduced include Economy and           the crimes were either the result of:
       Finance Minister Keat Chhon and            a) a conspiracy hatched by certain or
       Foreign Minister Hor Nam Hong,             all senior leaders, in which they gave
       long the target of spurious allegations.   orders to subordinates who carried
       Thus, the idea that there might be         them out; or b) abuse of delegated
       highly powerful suspects holding sen-      authority by subordinates, acting with-
       ior posts in the present government,       out or even contrary to orders from
       army or security forces—voiced both        above, without knowledge of their


        56                                                                     Open Society
                                                                             Players



superiors. The evidence so far indi-          to many other former CPK members
cates that both kinds of responsibility       who are not powerful figures—but
contributed to these crimes—but               whose crimes may be key to under-
whether or not this is so, the record         standing why lower-downs killed
needs to be revealed, analyzed, and           many fellow Cambodians in such
understood to set the legal, historical,      large numbers in so many places.
and moral record of the crimes                Unless Cambodians and others get
straight.13                                   to the heart of this issue honestly
    Beyond the pressing need to allo-         and introspectively, the legacy of
cate responsibility, better understand-
ing of this issue may also help resolve
the most common debate about the
deep causes of Khmer Rouge crimes:            If the trials demonstrate that it is
were they primarily the result of             possible for the judiciary in Cambodia to
the influence of a foreign ideology or of
local cultural proclivities.14 Yet even the   act independently, impartially, and fairly,
fairest and most comprehensive trials         then they will have a positive impact.
wouldn’t give us the answer to this
question. Similar or analogous debates
continue among those trying to explain
                                              Khmer Rouge crimes will remain very
the Holocaust, the genocide in Rwanda,
                                              heavy. Again, the tribunal is unlikely
and mass murder in the Soviet Union,
                                              to take us very far down this road, even
regardless of whether there have
                                              in the best case scenario—but at the
been fair accountability trials or not.
                                              least it should not be misused to
Nevertheless, the fairer and more
                                              preclude further honest introspection.
comprehensive the EC trials are, the
more likely they are to contribute some-
thing new and useful to answering             The demonstration effect
such fundamental questions.                   The fourth problem is that unless the
    It is for this reason that a predeter-    trials are fair and are allowed to follow
mined focus on senior leaders is              the evidence where it leads, regardless
problematic. The narrow emphasis              of political considerations, they will
inevitably gives an impression that all,      probably have little or no immediate
or the great majority, of crimes were         positive impact on the human rights
the result of a top-down conspiracy,          situation in Cambodia, including
even if, in fact, that was not the case.      judicial and legal reform. Simply put,
Conversely, dealing squarely with such        if the trials demonstrate that it is
                                              possible for the judiciary in Cambodia
issues may result in embarrassing
                                              to act independently, impartially, and
a handful of powerful government
                                              fairly, then they will have a positive
leaders, who would have to face
                                              impact; but if they do not, the impact
facts they would very much rather
                                              will be negative, precisely to the extent
remained unknown. The same applies



Justice Initiative                                                                   57
The Extraordinary Chambers



that they demonstrate the power of                     are declared to be fair: such an out-
politicians to sabotage and subvert                    come would be deeply demoralizing
even the most closely watched trials,                  for Cambodia’s dedicated fair trial
and override the knowledge, training,                  advocates, some of whom regard
and desires of those in the court                      the EC as offering the possibility of
system who favor truth and justice.                    generating reform.
The most negative outcome would be
if unfair proceedings take place but

Notes

Steve Heder teaches politics at the Faculty of Law and Social Science of London University’s School
of Oriental and African Studies.
1. These are: the Law on the Establishment of the Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea,
with inclusion of Amendments as promulgated on October 27, 2004 (NS/RKM/1004/006) (“EC
Law”); and the Agreement between the United Nations and the Royal Government of Cambodia
Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of
Democratic Kampuchea, June 6, 2003 (“UN Agreement”).
2. This 1999 trial—observed for Amnesty International by the author—resulted in the acquittal of
two human rights activists wrongly accused of fomenting violent unrest. For further details, see
Amnesty International, “Cambodia: Freedom for Human Rights Activists: Court Finally Faces
Facts,” AI Index ASA 23/013/1999, (July 21, 1999).
3. See, for example, Henrik Alffram’s report for the Swedish International Development Agency,
“An Analysis of the Cambodian Programme for Legal and Judicial Reform” (May 2004).
4. The finale of this trial was observed by the author. It was characterized by gross procedural irreg-
ularities. For further details, see “Pair Convicted of Killing Vichea Appeal to King,” Phnom Penh
Post, August 12-25, 2005. In another unfair trial—also observed by the author—opposition member
of parliament Cheam Channy was imprisoned on false allegations of forming a secret army. See
Human Rights Watch, “Cambodia: Opposition MP Jailed After Sham Trial” (August 9, 2005); and
“Channy a ‘Prisoner of Conscience’,” Phnom Penh Post, August 12-15, 2005.
5. For recent reports and critical assessments, see International Bar Association, “IBA Concerned at
Crisis in the Cambodian Legal Profession” (July 18, 2005); and “Bar Association Head Reinstated
Amid Conflict,” Cambodia Daily, July 27, 2005.
6. Based on author’s conversations with various jurists and lawyers since 1989.
7. EC Law, Article 1.
8. For further discussion, see Steve Heder, “Reassessing the Role of Senior Leaders and Local
Officials in Democratic Kampuchea Crimes: Cambodian Accountability in Comparative
Perspective,” in Jaya Ramji and Beth Van Schaack, eds., Bringing the Khmer Rouge to Justice:
Prosecuting Mass Violence before the Cambodian Courts (Lewiston: Edwin Mellen Press, 2005).
9. Stephen Heder and Brian Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes
of the Khmer Rouge (Phnom Penh: Documentation Center of Cambodia, 2001).
10. We declared that “calls to indict Hun Sen of Cambodia for genocide, war crimes and crimes
against humanity have no basis in fact or law,” adding that “it is a disservice to the rule of law and
the truth to make baseless or grossly exaggerated allegations to achieve a political end.” See:
http://www.embassy.org/cambodia/newsletter/nloctober98.htm.




58                                                                                        Open Society
                                                                                        Players



11. Credible allegations against two symbolic leaders of Hun Sen’s Cambodian People’s Party, Heng
Samrin and Chea Sim, do exist. However, neither is truly powerful, and whether they might be
deemed “most responsible” is an open question.
12. See Brad Adams, “Cambodia’s Judiciary: Up to the Task?”; Scott Worden, “An Anatomy of the
Extraordinary Chambers”; and Dinah PoKempner, “The Tribunal and Cambodia’s Transition to a
Culture of Accountability,” all in Ramji and Van Schaack.
13. Again, see “Reassessing the Role of Senior Leaders and Local Officials.” See also Michelle
Vachon’s interview of Ea Meng-Try in her review of his book Breaking the Chains (Phnom Penh:
Documentation Center of Cambodia, 2005), in Cambodia Daily, November 5-6, 2005.
14. For contrasting views, see Alexander Laban Hinton, Why Did They Kill: Cambodia in the Shadow
of Genocide (Berkeley: University of California Press, 2004) and Steve Heder, Cambodian
Communism and the Vietnamese Model: Imitation and Independence, 1930-1975 (Bangkok: White Lotus,
2004). See also the exchange of letters between Hinton and Henri Locard, in the letters section of
the Phnom Penh Post, October 7-20, 2005.




Justice Initiative                                                                               59
The Extraordinary Chambers



The Role of Victims in Bringing
Former Khmer Rouge Leaders
to Justice in Cambodia
Susana SáCouto looks at the chal-           “direct popular participation” in the
lenges and benefits of involving vic-       EC trials may “help many victims
tims in the work of the Extraordinary       come to terms with the past, and
Chambers.                                   contribute to a process of national
                                            reconciliation.”3 This goal is particu-
The role of victims in bringing to jus-     larly significant in the context of
tice perpetrators of crimes committed       Cambodia, where justice for the fami-
by the Khmer Rouge in Cambodia              lies of an estimated 1.7 million people
has remained largely unexplored. Yet        who perished under the leadership of
there may be good reason to pay             the Khmer Rouge has effectively been
closer attention to the ways in which       put on hold for over 25 years.4
popular participation in the trials of          Until recently, victim participation
former Khmer Rouge leaders might            in international criminal proceedings
help the Extraordinary Chambers in          has been limited. Victims played only
the Courts of Cambodia (EC)—the             a minor role in proceedings before
United Nations-assisted Cambodian           the International Military Tribunal at
tribunal set up to try these leaders—       Nuremberg, where prosecutors relied
achieve its goals. As a coalition of        heavily on the paper trail left behind
Cambodian nongovernmental organi-           by the perpetrators of World War II
zations recently noted, the EC repre-       crimes.5 Victims played a more signif-
sents “the last best chance for justice     icant role in proceedings before the
for the victims of the atrocities           ad hoc international criminal tribunals
committed [by the Khmer Rouge].”1           for the former Yugoslavia (ICTY) and
If delivering justice for victims lies      Rwanda (ICTR), and the international-
at the heart of the effort to hold perpe-   ized courts in Sierra Leone, East
trators of Khmer Rouge-era atrocities       Timor, and Kosovo, but their involve-
accountable, then giving victims an         ment has largely been restricted to
option to participate in proceedings        appearing as witnesses.
may help the tribunal succeed.                  In the last couple of decades, how-
Indeed, victims’ advocates have             ever, there has been increasing recog-
argued that giving those affected by        nition of the importance of victim
atrocities a role to play and a sense of    participation in both the design and
empowerment may bring them a step           implementation of national and inter-
closer to healing and rehabilitation.2      national justice mechanisms. As early
As one commentator has noted,               as 1985, a United Nations Declaration



60                                                                      Open Society
                                                                          Players



of Basic Principles of Justice for              Yet the extent to which victims have
Victims of Crime and Abuse of Power         been entitled to “participate” in pro-
called on states to ensure that judicial    ceedings has varied. In some civil law
and administrative processes were           systems, for instance, a victim may
responsive to the needs of victims          join a criminal action initiated by the
by, inter alia, “[a]llowing the views and   state as a “subsidiary prosecutor.”11
concerns of victims to be presented         Participation in this capacity includes
and considered at appropriate stages        the right to be present at all stages of
of the proceedings.”6 Since that time,      the proceedings, to question witness-
there has been an increasing interest       es, to provide additional evidence, and
in exploring “restorative-based models      to present a claim for compensation.12
[of justice] which emphasize [victim]       In others, victims have been granted a
reparation and participation in addi-       right not only to intervene in an exist-
tion, or in contrast, to the traditional    ing prosecution, but also to be heard
focus on punishment.7 Consequently,         as independent parties and to initiate
since the mid-1980s, “the interests         separate prosecutions.13 Although vic-
of victims have come to play a more         tims’ participation has been less exten-
prominent role in the formulation           sive in common law systems, due in
of policy in both domestic and inter-       part to the perception that the adver-
national criminal justice systems.”8        sarial nature of such systems is incom-
    The concept of “participation” is       patible with the participation of third
somewhat abstract. One commentator          parties,14 even these systems have seen
has suggested that it can “be perceived     a shift in favor of giving victims an
as stemming from the broader con-           expanded role at certain stages or in
cept of citizenship, and may include        specific types of criminal proceedings.
‘being in control, having a say, being      For instance, some adversarial sys-
listened to, or being treated with dig-     tems permit victims to intervene at
nity and respect.’”9 This characteriza-     trial when specific issues are raised.15
tion of the concept comports with the       Others allow victims to institute and
recent findings of the United Nations       prosecute a criminal contempt of a
independent expert tasked with updat-       civil order.16
ing the UN Set of Principles to combat          Several surveys have found that,
impunity (originally submitted to the       where domestic criminal law allows
UN Commission on Human Rights               victims to “participate” in proceedings,
in 1997). In the introduction to her        such as in Germany and Poland,
report, the independent expert notes        those who have exercised this right
that “[victim] participation helps          expressed greater satisfaction with
ensure that policies for combating          the criminal justice process generally
impunity effectively respond to vic-        than those who chose not to.17 This
tims’ actual needs and, in itself, ‘can     suggests that “offering victims some
help reconstitute the full civic mem-       form of acknowledged and formal role
bership of those who were denied the        at the trial” might not only “enhance
protection of the law in the past.’”10      [victims’] sense of satisfaction with


Justice Initiative                                                                61
           The Extraordinary Chambers



           the criminal justice system,” but also      Scope of victims’ role under
           “serve to combat the sense of power-        the law establishing the
           lessness that many have reported            Extraordinary Chambers
           during criminal proceedings.”18 More
                                                       The Law on the Establishment of the
           importantly, victim involvement in the
                                                       Extraordinary Chambers in the Courts
           proceedings could serve to enhance
                                                       of Cambodia for the Prosecution
           their overall legitimacy. Indeed, “injec-
                                                       of Crimes Committed during the
           tion of the victims’ perspective” into
                                                       Period of Democratic Kampuchea (the
           the trial can “lend additional trans-
                                                       “EC Law”),21 which gives Cambodia
           parency to the outcome of the case.”19
                                                       jurisdiction to try senior leaders and
                                                       “those most responsible” in the
                                                       Khmer Rouge, seems to envision
  Giving victims an option to participate in           a new role for victims. The Law’s
                                                       Article 36 suggests that in addition
proceedings may help the tribunal succeed.             to being allowed to testify before
                                                       the Extraordinary Chambers, victims
                                                       may also be able to lodge appeals
           This seems particularly significant         against trial chamber decisions.22
           in the context of postconflict societies    Furthermore, several provisions of the
           struggling to consolidate peace and         EC Law direct the trial chambers,
           achieve some sense of national              as well as the co-prosecutors and
           reconciliation.                             co-investigating judges, to follow
               The critical question appears to be     “existing procedures in force”23 in
           how to afford victims a meaningful          Cambodia, relevant provisions of
           role in the prosecution of serious          which allow victims to join criminal
           international crimes without offend-        proceedings as civil parties seeking
           ing the rights of the accused to a fair     compensation.24
           and impartial trial, and without signif-        However, the EC Law’s jurisdiction-
           icantly delaying the proceedings.           al clause, which only mentions crimi-
           In light of the large number of poten-      nal charges,25 and Article 38, which
           tial victims in cases involving mass        clearly states that penalties “shall be
           crimes, opening the door to victim          limited to imprisonment,”26 seem to
           participation could lead to protracted      exclude the possibility of companion
           proceedings, which, in turn, could          civil proceedings. Indeed, nothing in
           infringe on the trial rights of             the law explicitly provides for victim
           the accused, particularly the right to      compensation. Moreover, there is
           be tried without undue delay.20             ambiguity regarding the content of
           The potential for delay is of particular    Cambodia’s “existing procedures in
           concern in the context of the EC,           force.”27 Some commentators have
           where those expected to be tried are        suggested, for instance, that while
           aging, with some in or approaching          victims may join criminal proceedings
           their eighties.                             to seek compensation, Cambodian
                                                       criminal procedures do not permit the

            62                                                                     Open Society
                                                                           Players



type of victim-initiated prosecutions       Statute) and the ICC Rules of
possible in some civil law systems.28       Procedure and Evidence (ICC Rules),
Even if these rules were entirely clear,    victims of crimes within the jurisdic-
it is doubtful that the drafters of the     tion of the Court have unprecedented
procedures permitting victims to join       rights. Where their personal interests
criminal proceedings as civil parties       are affected, victims may take part in
had in mind their application to cases      proceedings by making submissions
of mass crimes, where an extraordi-         to the court at various stages of the
nary number of victims could poten-         proceedings.30 However, both the
tially be involved.
    Nevertheless, given the recent
trend toward recognizing the impor-
tance of victim participation in efforts    There has been increasing recognition
to combat impunity, it seems worth-
                                            of the importance of victim participation
while to explore the question of what
role victims might actually be able         in international justice mechanisms.
to play in proceedings before the EC.
The International Criminal Court
(ICC), which explicitly empowers
victims to take an active part in pro-      Rome Statute and ICC Rules go
ceedings, might provide some useful         to great lengths to ensure defendants’
guidance. The measures developed            right to a fair and speedy trial, by giv-
by the ICC to ensure effective partici-     ing the court broad discretion to limit
pation of victims in ICC proceedings,       when and how victims may intervene.
although still largely untested, may        Article 68(3) of the Rome Statute
be particularly helpful given the simi-     permits victims’ views and concerns to
larity in purpose underlying both the       be presented and considered, but only
EC and the ICC—namely to bring to           at “stages of the proceedings deter-
justice perpetrators of international       mined to be appropriate by the court
crimes affecting large numbers of           and in a manner which is not prejudi-
victims. Significantly, the EC Law itself   cial or inconsistent with the rights of
permits the EC to seek guidance “in         the accused and a fair and impartial
procedural rules established at the         trial.” Significantly (and unlike certain
international level” when, as in this       civil law jurisdictions that allow
case, there is uncertainty regarding        victims to be joined in the criminal
the interpretation or application of        proceedings as civil parties), neither
existing procedures.29                      the Rome Statute nor the ICC Rules
                                            give victims a right to demand the
Victim participation in                     prosecution of particular individuals
                                            or to file an appeal against a decision
proceedings before the ICC
                                            of the trial chambers.
Under the 1998 Rome Statute of the
International Criminal Court (Rome



Justice Initiative                                                                63
             The Extraordinary Chambers



             Limits on who can participate                Limits on how victims can participate
             Under the ICC Rules, victims wishing         Victims whose applications to the
             to participate in proceedings, or per-       ICC are accepted have the right to
             sons acting with their consent, must         a legal representative of their choice.36
             make a written application to the            However, as with the application
             court.31 The court can reject the appli-     process, the ICC Rules recognize
             cation if it finds that the applicant        that “[w]here there are a number
             is not a “victim,” defined in the Rules      of victims, the Chamber may, for
             as a natural person who suffered             the purposes of ensuring the effective-
             harm as a result of the commission           ness of the proceedings, request
             of a crime within the jurisdiction of        the victims or particular groups of
             the court, or an organization or insti-      victims . . . to choose a common legal
             tution that sustained direct harm to         representative or representatives.”37
                                                          Furthermore, if victims are unable
                                                          to choose a common representative,
                                                          the court may impose one upon
Victim involvement in the proceedings could
                                                          them,38 though the ICC Rules explicit-
     serve to enhance their overall legitimacy.           ly permit the court to provide financial
                                                          assistance to victims who lack the
                                                          means to pay for representation.39
                                                              Once selected, legal representatives
             certain types of property.32 It is not yet
                                                          may attend and participate in proceed-
             clear how close a connection a victim
                                                          ings, including hearings.40 However,
             needs to establish to a case or situation
                                                          the court may confine their participa-
             under review by the court, but an
                                                          tion to written observations or submis-
             application can be rejected if the court
                                                          sions,41 and representatives must make
             finds that the victim’s “personal inter-
                                                          an application to the court if they
             ests” are not affected.33
                                                          wish to question a witness, an expert,
                 Moreover, the ICC Rules give the
                                                          or the accused.42 In issuing its ruling,
             court the flexibility to consider appli-
                                                          the court is required to take into
             cations as a group.34 Yet, even at this
                                                          account, among other things, “the
             initial stage of the process, the rules
                                                          stage of the proceedings, the rights of
             suggest that a delicate balance is
                                                          the accused . . . and the need for a
             required between ensuring victims’
                                                          fair, impartial and expeditious trial.”43
             rights to participate and the need
                                                          Upon consideration of these factors,
             to “ensure the effectiveness of the
                                                          the court may specify the manner and
             proceedings.”35 Given the large num-
                                                          order of questions, or itself conduct
             ber of potential victims in cases involv-
             ing mass crimes, the absence of such         the questioning on behalf of the
             a rule could easily lead to long delays      victim’s legal representative.44
             in the proceedings.                              Again, these rules demonstrate
                                                          that the fair administration of cases
                                                          involving a large number of victims


             64                                                                        Open Society
                                                                              Players



may require the imposition of certain          access to and influence over the pro-
measures that limit the manner in              ceedings. While victims may present
which individual victims participate           their views and concerns to the court
in the proceedings.                            at various stages of the proceedings,
                                               it always remains up to the court
Limits on stages during which                  to determine when such intervention
                                               is “appropriate.”47 Moreover, the court
victims might intervene
                                               may limit participation at any stage
In an exceptional departure from               in order to ensure proceedings are
previous international criminal                conducted “in a manner which is
tribunals, the Rome Statute permits            not prejudicial or inconsistent with
victims to have a potential role at            the rights of the accused and a fair and
almost all stages of proceedings. Even
before proceedings begin, victims
may submit information to the ICC
                                               The critical question appears to be how
Prosecutor in an effort to persuade
him to initiate an investigation.45            to afford victims a meaningful role in the
Under Article 15(3), victims may inter-        prosecution of serious international crimes.
vene when the prosecutor has decided
to seek permission from the court to
proceed with an investigation; under
Article 19(3), victims can express their       impartial trial.”48 Providing a safe-
views to the court on matters of juris-        guard against the potential for major
diction and admissibility; and under           delays as a result of victim participa-
Article 68(3), victims may take part,          tion, the Rome Statute also explicitly
under certain circumstances, in the            permits both the prosecutor and the
actual trial proceedings. In addition,         person being tried to appeal a decision
Article 75 recognizes victims’ right           of the court that might “significantly
to reparations (including restitution,         affect the fair and expeditious conduct
compensation, and rehabilitation) and          of the proceedings . . . ”49
permits the court to invite submis-                The balancing of interests between
sions from victims before a ruling             encouraging victim participation on
on reparations is issued. Significantly,       the one hand and the fair and expedi-
intervention by victims or their legal         tious administration of justice on the
representatives is not limited to these        other is evident throughout the Rome
specific issues; as the ICC Rules              Statute and ICC Rules. For instance,
elaborate, “[a] Chamber may seek               the rules require the court to notify
the views of victims or their legal            victims of a decision by the prosecutor
representatives . . . on any issue . . . ”46   not to initiate an investigation or pros-
                                               ecute a case in order to allow victims
    Nevertheless, both the Rome
                                               to meaningfully exercise their right to
Statute and the ICC Rules make clear
                                               participate,50 but nothing in the statute
that there are limitations to victims’



Justice Initiative                                                                   65
  The Extraordinary Chambers



  or the rules permits victims to require     ings do not grind to a halt. Indeed,
  the prosecutor to reverse such a deci-      given the massive scale of victimiza-
  sion. Although victims might be able        tion in cases involving serious interna-
  to share their views with the court         tional crimes, the absence of clear
  even before the prosecutor decides to       guidelines limiting who, how, and at
  initiate an investigation, neither the      what stages victims may participate
  statute nor the rules expressly require     may lead to significant delays in the
  the prosecutor to abide by victims’         proceedings.53 This would be a particu-
  perceptions of who should be investi-       larly troubling result in trials before
  gated or tried. In other words, unlike      the EC, as those expected to be subject
  some civil law jurisdictions where          to prosecution are ageing and may not
                                              survive long delays in the process.
                                                  For instance, whereas the ICC
                                              Rules limit victim participation to
  Nothing in the EC Law explicitly
                                              persons who suffered harm as a result
provides for victim compensation.             of the commission of a crime within
                                              the jurisdiction of the court, this defi-
                                              nition would likely yield an unmanage-
                                              able number of potential victims in
  criminal investigations are triggered       the context of Cambodia, where nearly
  by victim complaints,51 the ICC             everyone over the age of 25 has at least
  appears to encourage input from             one family member who suffered
  victims while at the same time limit-       harm, if not death, under the regime
  ing their influence on the selection of     of the Khmer Rouge. Clear guidelines
  persons investigated or tried by the        giving the EC broad discretion to limit
  court. Similarly, although victims may      how and when victims may intervene
  participate in post-conviction proceed-     in its proceedings are therefore
  ings, such as the reparations phase,        all the more important. At the very
  they are not entitled to file an appeal     least, the EC should have the flexibility
  against a decision of the court, with       to: 1) consider applications from simi-
  the exception of a decision relating
                                              larly situated victims as a group,
  to reparations.52
                                              2) request groups of victims to choose
                                              a common legal representative, 3) limit
  Lessons from the ICC?                       the manner in which such representa-
  The Rome Statute and ICC Rules,             tives participate in trial and pre-trial
  although still untested, provide much       proceedings, and 4) determine at what
  greater detail than the EC Law on           stage of the proceedings intervention
  whether and how victims might               is appropriate.
  participate in proceedings, and sug-            Although such guidelines would
  gest that if victims are to have a role     provide an initial framework for
  at all, certain considerations are neces-   incorporating victims’ voices into
  sary in order to ensure that the trials     the process of holding perpetrators
  are conducted fairly and that proceed-      accountable, the limited experience


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of the ICC thus far—the prosecutor           large numbers of victims to participate
opened his first investigation in June       in hearings without offending the trial
of 2004—means that the practical             rights of the accused or unduly dis-
challenges associated with implement-        rupting or delaying the proceedings
ing these standards are not yet clear.       may require victims to be represented,
Indeed, some commentators have               even if, as is likely to be the case in
expressed skepticism about the ability       many instances, they are unable to
of the ICC to adequately give effect         afford their own counsel. The ICC has
to the Rome Statute’s victim participa-      created an Office of Public Counsel for
tion provisions.54                           Victims to provide those representing
    Nevertheless, exploring this ques-       their interests with legal research and
tion in the context of the EC presents
a unique opportunity. Unlike the ICC,
the structural framework of the              If victims are to have a role, certain
inquisitorial system, on which the
Cambodian legal system (and the EC)          considerations are necessary to ensure
is largely based, may make it easier         that the trials are conducted fairly and
to accommodate direct input from
                                             do not grind to a halt.
victims. As one commentator notes,
“[t]he fact that inquisitorial proceed-
ings are judge-led, as opposed to party-
                                             other assistance.56 Still, victims’ rights
led, indicates that the participation of a
                                             advocates have suggested that not
third-party would be much less prob-
                                             enough resources have been allotted
lematic, and would be much less likely
                                             in the court’s budget to ensure that
to be seen as a factor that could poten-
                                             victims are adequately able to exercise
tially endanger the equality of arms.”55     their rights under the Statute, despite
                                             the ICC’s explicit provision for victim
Prospects for victim participation           participation.57 If victims are to have
in proceedings before the EC                 a meaningful role in the EC’s proceed-
Cambodia is in the process of adopt-         ings, resources must be allocated,
ing a new penal code and a new               if not added, to the budget of the
code of criminal procedure. However,         Office of Administration58 and any
it is still unclear whether these new        other office likely to have responsibili-
codes will be in force before EC             ty over the implementation of victim
proceedings begin and whether they           participation guidelines. Indeed, in
will address the specific challenges         light of the scant resources apparently
                                             allotted in the EC budget for basic
surrounding victim participation in
                                             victim-related needs, such as protec-
trials of mass crimes.
                                             tion and mental health services, it
    Another significant challenge
                                             seems clear that new resources will be
concerns the budgetary implications
                                             needed to effectively implement any
of allowing victims to participate. As       level of victim participation.
the ICC Rules suggest, permitting


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The Extraordinary Chambers



    Finally, even the limited experience              help them move toward healing and
of the ICC demonstrates the impor-                    rehabilitation, the ambiguities inher-
tance of providing victims with                       ent in the EC Law with respect to vic-
accurate and full information, not only               tim participation must be resolved and
about the possible role that they might               information regarding victims’ role in
play in proceedings but also about the                the trials of former Khmer Rouge lead-
limits to such participation. Without                 ers must be communicated in clear
this, misinformation and, with it,                    and understandable terms to the many
unmanageable expectations are likely                  Cambodians still struggling to recover
to develop.59 Thus, if the EC is to con-              from the legacy of the Khmer Rouge.
tribute to victims’ access to justice and



Notes
Susana SáCouto is director of the War Crimes Research Office, American University Washington
College of Law.

1. Press release of the Cambodian Human Rights Action Committee,
“Judge Selection for Khmer Rouge Tribunal,” August 24, 2005, available at:
http://www.licadho.org/press/files/97PRCHRACJudgeKRT05.pdf. Significantly, Deputy Prime
Minister Sok An expressed a similar sentiment when bringing to the floor of the Cambodian
National Assembly the draft law on the ratification of the agreement between Cambodia and the
United Nations on the Extraordinary Chambers in October 2004. In his remarks, he noted that
“provid[ing] justice in the memory of the millions of Cambodians who lost their lives” was one of
the key principles that had guided the Cambodian government throughout its negotiations with the
United Nations. Deputy Prime Minister Sok An, presentation to the National Assembly on the
Ratification of the Agreement between Cambodia and the United Nations and Amendments to the
2001 Law Concerning the Establishment of Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (October 2004),
available at: http://www.dccam.org/Tribunal/Analysis/Sok_An_Speech.htm.

2. See, for example, Fiona McKay, Universal Jurisdiction in Europe: Criminal Prosecutions in Europe
since 1990 for War Crimes, Crimes Against Humanity, Torture and Genocide (REDRESS, 1999), avail-
able at: http://www.redress.org/documents/unijeur.html (arguing that involving victims of crimes in
the judicial process “can be an essential part of the process of healing and rehabilitation for victims,
creating a sense of empowerment and closure”).

3. David Boyle, “Ending the Impunity of the Khmer Rouge: a Possible Role for the Victims?” Réseau
Internet pour le Droit International, November 16, 2004, available at: http://www.ridi.org/boyle/.

4. Characterizing the “atmosphere of violence—domestic, mob and political” in which Cambodians
live today as a “legacy of the culture of violence imposed by the Khmer Rouge,” one Cambodian his-
torian suggests that without bringing Khmer Rouge leaders to trial the “full healing of Cambodian
wounds” will not occur. Huy Vannak, “Stalling KR Trial Will Only Harm Already Fragile Cambodia,”
The Cambodia Daily, September 9, 2005.

5. See Patricia M. Wald, “To ‘Establish Incredible Events by Credible Evidence’: The Use of Affidavit
Testimony in Yugoslavia War Crimes Tribunal Proceedings,” 24 Harv. Int’l L.J. 535 (2001), 538.

6. U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted
by G.A. Res. 40/34, (November 29, 1985). A similar view was reflected in a 1985 Recommendation
by the Committee of Ministers of the Council of Europe, which urged European states to take into
account the needs of victims throughout all stages of the criminal justice process. Council of
Europe, Committee of Ministers Recommendation No. 85(11) (June 28, 1985).




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7. Jonathan Doak, “Victims’ Rights in Criminal Trials: Prospects for Participation,” 32 J. of Law &
Society 294 (2005), 315 (noting that “[r]estitution and rehabilitation are increasingly being main-
streamed as values that ought to be safeguarded by the criminal process”). See also Adam Crawford
and Jo Goodey, eds., Integrating a Victim Perspective within Criminal Justice: International Debates,
Aldershot: Dartmouth Publishing Company Ltd. (2000), 25-28.
8. Doak, 294.
9. Doak, 295 (citing I. Edwards, “An Ambiguous Participant: The Crime Victim and Criminal Justice
Decision-Making,” 44 Brit. J. of Crim. 967 (2004), 973).
10. Diane Orentlicher, “Report of the Independent Expert to Update the Set of Principles to Combat
Impunity,” U.N. Doc. E/CN.4/2005/102 (2005), para. 7 (internal citations omitted).
11. Doak, 308. This approach is common to Germany and Poland.
12. Doak, 308.
13. Doak, 310-11. This model, which is commonplace in France and Belgium, is often referred to as
the partie civile procedure.
14. Doak, 297.
15. Doak cites Ireland as an example. There, victims are permitted to be represented by counsel in a
voir dire “where the defence has applied to introduce previous sexual history evidence.” Doak, 296.
16. In some jurisdictions in the United States, for example, victims of domestic violence are permit-
ted to initiate and prosecute a criminal contempt action against a perpetrator who violates certain
provisions of a civil protection order. See, e.g., Green v. Green, 642 A.2d 1275 (D.C. 1994) (holding
that husband had no constitutional right to public prosecutor in intrafamily contempt proceeding
and affirming right of wife to prosecute criminal contempt of the existing protection order). See also
David M. Zlotnick, “Empowering the Battered Woman: The Use of Criminal Contempt Sanctions to
Enforce Civil Protection Orders,” 56 Ohio St. L.J. 1153 (1995), 1196.
17. Doak, 308-10 (discussing surveys of the use of the “subsidiary prosecutor” procedure in
Germany and Poland). See also Doak, 312 (discussing study of victim participation in Dutch crimi-
nal justice system which suggested that “many victims feel that procedures which even allow passive
participation in the criminal trial carry a certain symbolic importance for many victims which, in
turn, can reduce feelings of exclusion and unfairness”) (internal citation omitted).
18. Doak, 312. This proposition is not without controversy, however. Some commentators have main-
tained that victims who have participated as witnesses in international criminal tribunals
have found the process neither healing nor rehabilitative. See, e.g. “Developments in the
Law–International Criminal Law: II. The Promises of International Prosecution,” 114 Harv. L.
Rev.1957 (2001), 1972 (contending that the conditions in which victims were asked to testify at
the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR)—
including the fact that testimony was shaped by legal needs rather than victims’ needs—were
“unlikely to further restorative justice effectively”). Notably, the statutes of these tribunals make
“no provision for victim participation.” “Developments in the Law–International Criminal Law,”
1972, n. 91. Thus, the criticism begs the question of whether victims would feel differently if
progressive and sensitive victim-focused provisions were adopted and implemented in practice.
19. Doak, 312.
20. The right to be tried without undue delay is protected not only in Article 9(3) of the
International Covenant on Civil and Political Rights (ICCPR), adopted Dec. 16, 1966, entered into
force Mar. 23, 1976, U.N. Doc. A/6316 (1966) (“[a]nyone arrested or detained on a criminal charge
shall be . . . entitled to trial within a reasonable time”), but also in the requirements for a fair hearing
contained in Article 14(3)(b) of the ICCPR, General Comment 13, Article 14 (Administration of
Justice), U.N. Doc. CCPR/C/21/Rev.1, ¶ 10 (1984).
21. Law NS/KRM/1004/006, Law on the Establishment of the Extraordinary Chambers in the
Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic
Kampuchea (October 27, 2004).


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The Extraordinary Chambers



22. Law on the Establishment of the Extraordinary, Art. 36 (“The Extraordinary Chamber of the
Supreme Court shall decide appeals made by the accused, the victims, or the Co-Prosecutors against
the decision of the Extraordinary Chamber of the trial court . . . ”) (emphasis added).
23. Law on the Establishment of the Extraordinary Chambers, Arts. 20, 23 and 33.
24. Law on Criminal Procedure passed by the National Assembly of the State of Cambodia (January
28, 1993), Arts. 15-16; (translated by the Legal Assistance Unit of the Cambodia Office of the High
Commissioner for Human Rights); Provisions Relating to the Judiciary and Criminal Law and
Procedure Applicable in Cambodia during the Transitional Period (September 10, 1992), Art. 27.
25. Law on the Establishment of the Exraordinary Chambers, Art. 2.
26. Law on the Establishment of the Extraordinary Chambers, Art. 38.
27. See David Boyle, “A Possible Role for the Victims,” Réseau Internet pour le Droit International
(1999), available at: http://www.ridi.org/boyle/victims.htm (“It should be noted, from the outset,
that the exact content of Cambodian criminal legislation in this area is difficult to evaluate due to
the existence of a plethora of legislative provisions adopted by successive governments, the
relative legal value of which is not clear. The main problem results from the fact that between the
Vietnamese invasion of Cambodia in 1979 and the election of a representative government in 1993,
two or more rival ‘governments’ co-existed in the country.”)
28. Boyle, “A Possible Role for the Victims.”
29. Law on the Establishment of the Extraordinary Chambers, Art. 33.
30. Rome Statute of the International Criminal Court, adopted July 17, 1998, by the UN Diplomatic
Conference of Plenipotentiaries on the Establishment of an International Criminal Court, entered
into force July 1, 2002, Art 68(3), U.N. Doc. A/CONF.183/9 (1998).
31. ICC Rules of Procedure and Evidence, R. 89, ICC-ASP/1/3 (2002).
32. ICC Rules, R. 85.
33. ICC Rules, R. 89(2).
34. ICC Rules, R. 89(4) (permitting the court to consider “a number of applications” in a manner
that ensures “the effectiveness of the proceedings” and to issue “one decision”). See also ICC
Regulations of the court, R. 86(6), ICC-BD/01-01-04 (2004).
35. ICC Rules, R. 89(4). See also ICC Regulations, R. 86(6).
36. ICC Rules, R. 90.
37. ICC Rules, R. 90.
38. ICC Rules, R. 90(3). See also ICC Regulations, R. 80(1).
39. ICC Rules, R. 90(5).
40. ICC Rules, R. 91(2).
41. ICC Rules, R. 91(2).
42. ICC Rules, R. 91(3). Exceptionally, representatives do not need to request permission to question
participants in reparations hearings.
43. ICC Rules, R. 91(3).
44. ICC Rules, R. 91(3).
45. Rome Statute, Article 15(1).
46. ICC Rules, R. 93 (emphasis added).




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47. Rome Statute, Art. 68(3).
48. Rome Statute, Art. 68(3).
49. Rome Statute, Art. 82(d)(1).
50. ICC Rules, R. 92(2).
51. See Doak, 310-11 (describing the right to initiate a prosecution as one of the victims’ rights
accompanying the partie civile procedure). See also Richard S. Frase, “Comparative Criminal Justice
as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why
Should We Care,” 78 Cal. L. Rev. 539 (1990), 669-70 (discussing French Criminal Procedure Code).
52. Rome Statute, Arts. 81-82. Victims may also request review of the registrar’s choice of a common
legal representative to represent their interests. ICC Regulations, R. 79(3).
53. In Ethiopia, for instance, where victims were allowed to intervene in the criminal proceedings
initiated against persons accused of committing crimes under the Marxist regime from 1974-1991,
“proceedings were significantly delayed to allow all complainants to be heard.” Boyle, “A Possible
Role for the Victims.”
54. C. Jorda and J. de Hemptinne, “The Status and Role of the Victim,” in The Rome Statute of the
International Criminal Court, A. Cassesse, P. Gaeta and J. Jones, eds. (2002), 1401.
55. Doak, 314.
56. ICC Regulations, R. 81.
57. Victims Rights Working Group, Victim Participation at the International Criminal Court: Summary
of Issues and Recommendations (2003), 13 (“[t]he low allotment for legal representation for victims in
the budget for the 2nd financial year of the Court is of serious concern”).
58. See Law on the Establishment of the Extraordinary Chambers, Art. 30.
59. Victims Rights Working Group, 4 (maintaining that a clear message regarding the court’s man-
date vis-à-vis victims will “leave it less vulnerable to misinformation or even negative propaganda”).




Justice Initiative                                                                                   71
      The Extraordinary Chambers




      Prosecuting Senior Leaders
      of Khmer Rouge Crimes
      Over thirty years have passed since         committed the slightest infraction was
      the Khmer Rouge took power. Kelly           subject to abuse, including summary
      Dawn Askin explains how and why             execution, and this included Khmer
      those most responsible can be prose-        Rouge cadre suspected of being disloy-
      cuted now.                                  al to the regime.1 Indeed, the evidence
                                                  suggests that fully one quarter of the
      The crimes committed by the Khmer
                                                  Cambodian population perished and
      Rouge from 1975-1979 represent one
                                                  that young children were not only
      of the greatest mass murder sprees of
                                                  among the casualties, but were inten-
      the 20th century. At least 1.7 million
                                                  tionally executed. The senselessness,
                                                  as well as the ruthlessness, of the
                                                  crimes remains mind-boggling. Even
Khmer Rouge leaders are still alive and           today, it is difficult to comprehend
                                                  the violence that the Khmer Rouge,
  have eluded justice for their crimes.           founded and led by Pol Pot, commit-
                                                  ted without provocation against their
                                                  fellow citizens.
      Cambodians were killed or died as a             Pol Pot (Saloth Sar) was born into
      result of the oppressive policies           an upper-middle class Cambodian
      imposed by the Khmer Rouge, with            farming family in 1925, in an area that
      execution, starvation, exhaustion from      was then part of French Indochina. In
      slave labor, malnutrition, and torture      1949, he traveled to France for educa-
      the leading causes of death. Privileged,    tion where he became heavily influ-
      professional, and educated persons,         enced by Marxism and Maoism. Pol
      especially teachers, intellectuals, doc-    Pot returned to Cambodia in 1953
      tors, police, former government offi-       and subsequently became leader of the
      cials, and businesspersons were sin-        Communist Party. After escalating
      gled out to be killed. Religious figures,   disputes with the government of
      ethnic minorities, and foreigners were      King Sihanouk put him at risk, Pol
      also targeted for persecution. Torture      Pot retreated into the jungle in 1962,
      at the Tuol Sleng (S-21) prison in          where he formed a peasant guerrilla
      Phnom Penh was routine, and forced          group to resist Sihanouk and, follow-
      confessions resulted in further victims     ing a 1970 coup, the U.S.-supported
      being purged or sent for re-education.      Lon Nol government. His army, which
      Throughout Cambodia, anyone who             became known as the Khmer Rouge
      questioned the extreme policies or          (Red Cambodians), seized control
                                                  of a destabilized Cambodia on April


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17, 1975.2 Cambodia was renamed            used to weed out foreigners and sus-
Democratic Kampuchea, and under            pected traitors of the regime. Many
Pol Pot’s leadership, the Communist        women and girls were raped before
Party of Kampuchea and its Central         being killed.4
Committee purportedly attempted               For four years, unimpeded by the
to build a classless Communist agrari-     international community, including
an utopia by creating a new self-reliant   the UN, a reign of death, terror, and
Cambodia through extreme agricultur-       persecution flourished throughout
al reform:                                 Democratic Kampuchea. Finally, at
  All foreigners were thus expelled,       the end of December 1978, after
  embassies closed, and any foreign        years of violent border incidents,
  economic or medical assistance           the Vietnamese army marched into
  was refused. The use of foreign lan-
  guages was banned. Newspapers
  and television stations were shut        After the World War II trials, there were
  down, radios and bicycles confis-
                                           five decades of widespread impunity for
  cated, and mail and telephone
  usage curtailed. Money was for-          atrocity crimes committed during armed
  bidden. All businesses were shut-        conflicts or dictatorships. Finally, in the
  tered, religion banned, education
  halted, health care eliminated,          1990s, a new practice of accountability
  and parental authority revoked.          began to emerge.
  Thus Cambodia was sealed off
  from the outside world . . . . In the
  villages, unsupevised gatherings         Cambodia and in less than two weeks
  of more than two persons were            captured Phnom Penh and deposed
  forbidden. Young people were             Pol Pot. He again fled into the jungle
  taken from their parents and             to launch a guerrilla war against suc-
  placed in communals. They were           cessive Cambodian governments for
  later married in collective cere-        the next 17 years. Pol Pot died, report-
  monies involving hundreds of             edly of heart failure, in April 1998, but
  often-unwilling couples.3                several other political, military, and
   Schools, banks, stores, businesses,     regional Khmer Rouge leaders are
media and religious institutions were      still alive and have eluded justice for
closed, families separated and family      their crimes.5
relationships banned, private property         After several years of negotiation
was confiscated and all personal rights    between the UN and the current Royal
eliminated. People were evacuated          Cambodian Government, and more
from the cities and forced into the        years of trying to secure adequate
countryside to work in what became         international and Cambodian fund-
known as the “killing fields” for 12-18    ing, it appears that the Extraordinary
hours per day, with deadly purges          Chambers in the Courts of Cambodia


Justice Initiative                                                                73
     The Extraordinary Chambers



     (EC) are finally going to be established    wars or by oppressive regimes, with
     to prosecute the senior surviving lead-     little or no consequence. It was of
     ers of the Khmer Rouge and others           course during this period that the
     most responsible for the heinous            Cambodian people were victimized by
     crimes committed during the period          the murderous Khmer Rouge regime.
     of Democratic Kampuchea.                    That the perpetrators were other
                                                 Cambodians was reminiscent of the
     Why now, 30 years later?                    Nazi extermination of German Jews
                                                 during the Holocaust. Still, there was
     Despite the mass murder and other
     atrocities committed by the Khmer           little international response until the
     Rouge, there would almost certainly         Vietnamese army intervened and with
                                                 relative ease brought an end to the
                                                 rule of Pol Pot and the Khmer Rouge.
                                                 Yet no one was held formally account-
        The prosecution will focus on            able for the atrocities.
                                                      After the World War II trials, there
indicting perhaps only 10-15 survivors
                                                 were five decades of widespread
      holding high level responsibility          impunity for atrocity crimes commit-
             for Khmer Rouge crimes.             ted during armed conflicts or dictator-
                                                 ships. Finally, in the 1990s, a new
                                                 practice of accountability began to
                                                 emerge. When images of emaciated
     be no trials to prosecute the architects    detainees behind barbed wire fences
     of the carnage were it not for a twist      and reports of concentration-type
     of fate in 1993 that changed the course     camps in Yugoslavia were broadcast
     of history, challenging impunity            around the world, the attention of the
     for atrocity crimes. After World War        international community—particularly
     II, the Allied victors of the war reject-   powerful Western nations—was awak-
     ed the accepted practice of summarily       ened with the realization that war and
     executing their vanquished foes, and        unspeakable crimes were again occur-
     instead held international trials in        ring on European soil. In 1993, the
     Nuremberg and Tokyo to prosecute            UN Security Council established the
     high level Nazi and Japanese war            International Criminal Tribunal for the
     criminals.6 Also in 1945, the newly         former Yugoslavia (ICTY or Yugoslav
     established United Nations gave its         Tribunal) to prosecute war crimes,
     Security Council the task of maintain-      crimes against humanity, and geno-
     ing international peace and security,7      cide, in response to credible reports of
     prompting promises that the mass            ethnic cleansing, mass rape, murder,
     slaughter of innocent civilians would       forced deportation, and other crimes
     “never again” be allowed to occur.          committed in that territory of the
     Yet between 1945 and the early 1990s,       Balkans.8 A year later, as over 700,000
     countless mass atrocities were perpe-       innocent Tutsi civilians were systemat-
     trated throughout the world in vicious      ically raped and slaughtered during


     74                                                                       Open Society
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a 100-day genocidal campaign in           were near universal, the efficacy of
Rwanda, the UN responded again by         having a majority of Cambodian
setting up the International Criminal     judges on the court—a non-nego-
Tribunal for Rwanda (ICTR or Rwanda       tiable condition of the Cambodian
Tribunal) in 1994.9 As other armed        government—has caused grave
conflicts ravaged continents and          concern in the UN and among
targeted particular groups for persecu-   Cambodian citizens and others
tion and eradication, a permanent         knowledgeable about the corrupt
International Criminal Court was          and non-independent Cambodian
negotiated in 1998 to prosecute war       judicial system.14
crimes, crimes against humanity, and
genocide occurring after the Statute
entered into force on July 1, 2002.10     The EC will be the first hybrid
   Thus in the 1990s, a culture of
                                          tribunal to use investigating judges
accountability, rather than impunity,
began slowly to take hold. As a result,   and a primarily civil law system.
efforts were made to improve upon
the mandate and functioning of
the Yugoslav and Rwanda Tribunals
                                          EC investigations
so as to make future ad hoc courts
more efficient, effective, and respon-
                                          and prosecutions
sive to victimized communities.           Myriad books, reports, and articles
Internationalized efforts to redress      have been written about the crimes
atrocity crimes in Sierra Leone,          committed during the Khmer Rouge
East Timor, and Kosovo resulted in        campaign of terror, death, and devasta-
“hybrid” tribunals—involving a mix        tion.15 But one organization has sys-
of national and international judges—     tematically gone about documenting
being established.11 Other regional or    the crimes for the past 10 years. The
state initiatives for redressing mass     Cambodian Documentation Center
crimes—such as efforts to secure the      (DC-Cam), is an independent organi-
arrest and trial of former dictators      zation established in 1995 to collect
General Pinochet of Chile and             evidence of war crimes, crimes against
Hissène Habré of Chad—were also           humanity, and genocide, and to
undertaken during this period. 12         preserve the historical record on these
The possibility and urgency of hold-      crimes. Promoting memory and jus-
ing trials for the aging Khmer Rouge      tice are its primary purposes. DC-Cam
leaders began growing and gaining         has conducted thousands of inter-
momentum, and pressure was put            views with Khmer Rouge victims,
on the UN to secure an agreement          witnesses, and perpetrators.16 Because
with the Cambodian government to          many victims and witnesses have
establish a court, which it did after     died in the intervening years, the doc-
several false starts.13 However, while    umentary and other evidence gathered
                                          by DC-Cam over the past 10 years will
calls for a Khmer Rouge Tribunal


Justice Initiative                                                             75
           The Extraordinary Chambers



           prove indispensable in directing          will focus on indicting perhaps
           the course of the investigations and      only 10-15 survivors holding high level
           providing crucial supporting materials    responsibility for Khmer Rouge
           for the trials.                           crimes, namely members of the
              The vast majority of interviews and    Central Committee who were the
           evidence will need to be collected by     architects of the policies, the most
           the EC prosecution and investigation      feared physical perpetrators, and the
           teams directly. These teams, made up      military and regional leaders who
           of internationals and Cambodians,         communicated and enforced the
           will be responsible for developing an     policies. Additional prosecutions or
                                                     accountability mechanisms, such as
                                                     truth commissions, will need to be
                                                     handled by domestic courts or in
 Counts will likely be limited to less than a        other fora.
dozen per indictee, since additional counts              More specifically, the EC has
may add significant time to the trial phase.         authority to prosecute “senior leaders
                                                     of Democratic Kampuchea” and
                                                     “those who were most responsible
                                                     for the crimes and serious violations
           investigation and prosecution strategy,   of” Cambodian penal law, internation-
           gathering evidence (through such          al humanitarian laws, and relevant
           means as exhuming graves, conduct-        international treaties (Art. 2new).
           ing detailed interviews, reviewing        These terms can be interpreted broad-
           documents, analyzing data, securing       ly to allow some flexibility to prosecute
           intelligence communications, and          both persons near the top of the
           examining photographic and other          hierarchy and also the most brutal
           material), establishing chains of         or notorious physical perpetrators,
           command and control, translating          as well as the indispensable mid-level
           documents, drafting indictments, and      actors, who provided direct lines of
           conducting trials and appeals.            communication between the Central
               The Law on the Establishment          Committee and the ordinary cadre.
           of the Extraordinary Chambers, along      It will be especially important to
           with the Agreement between the            be able to indict and arrest mid-level
           United Nations and the Royal              persons who could potentially plead
           Government of Cambodia, are the           guilty to crimes in return for receiving
           primary documents governing the           a benefit for agreeing to testify or give
           trials.17 The EC is located within        evidence against higher level actors.
           the Cambodian domestic courts, in         Plea agreements, if allowed, should
           the trial and supreme courts (Art.        be used cautiously as leverage to force
           2new). The facilities are separate from   culpable individuals who bear respon-
           the regular courts, however, and will     sibility for crimes—even if not at
           be located just outside Phnom Penh.18     the highest levels—to provide com-
           It is anticipated that the prosecution    mand/control and other relevant


            76                                                                    Open Society
                                                                             Players



information to the EC about the high-         ing the crimes. Procedures are put
est level actors. Although not senior         into place for disagreements which
leaders themselves, these persons may         may arise and for responsibilities and
nevertheless have been among those            coordination among and between the
most responsible for ensuring that            two offices (Arts. 16-28). The EC will
the extreme policies and crimes were          be the first hybrid tribunal to use
carried out fully, faithfully, and swiftly.   investigating judges and a primarily
    The crimes within the jurisdiction        civil law system, as well as dual
of the EC include certain domestic            partnerships between locals and inter-
and international crimes committed            nationals, so unanticipated challenges
between April 27, 1975, and January 6,
1979 (Art. 1). Thus, the temporal juris-
diction of the tribunal is limited,           Prosecutors are limited by logistical
despite the fact that serious crimes
were also committed in Cambodia out-
                                              and practical obstacles, including time
side the parameters of the specified          limitations, financial constraints, and
dates. Domestic crimes include homi-          language considerations.
cide, torture, and religious persecution
(under the 1956 Penal Code, Art.
3new). International crimes include
                                              and benefits will almost surely arise.
genocide (Art. 4), crimes against
                                                 The prosecution team (which as
humanity (including murder, extermi-
                                              used here includes co-prosecutors,
nation, enslavement, deportation,
                                              co-investigating judges and their
imprisonment, torture, rape, persecu-
                                              staff) may issue indictments against
tions on political, racial and religious
                                              individuals suspected of committing,
grounds, and other inhumane acts)
                                              planning, instigating, ordering, or
(Art. 5), grave breaches of the 1949
                                              otherwise aiding and abetting a justi-
Geneva Conventions (i.e., the war             ciable crime. They may also indict,
crimes of willful killing, torture, or        under the theory of command respon-
inhumane treatment, willfully causing         sibility or superior authority, civilian
great suffering, wanton destruction           or military leaders who failed to exer-
of property, compelling one to serve          cise effective authority and control
in hostile forces, willfully depriving        over a subordinate who committed
one of a fair trial, unlawful deportation     such crimes. Acting pursuant to
or confinement of civilians, and taking       an order of a superior does not relieve
civilians as hostages) (Art. 6), unlaw-       a suspect of individual criminal
ful destruction of cultural property          responsibility (Art. 29). If the
(Art. 7), and crimes against interna-         EC follows jurisprudence established
tionally protected persons (Art. 8).          by the ICTY, participation in a joint
    Cambodian and international co-           criminal enterprise is also a viable
prosecutors and co-investigating              form of establishing criminal respon-
judges will share responsibility for          sibility, as it is a form of “commission”
investigating, indicting, and prosecut-       of a crime.19

Justice Initiative                                                                   77
             The Extraordinary Chambers



                Under      the     Joint   Criminal      applies to concentration camp type
             Enterprise (JCE) theory of liability,       situations or systems of mass persecu-
             used in the post-World War II               tion or oppression. In JCE II, there is
             Nuremberg trials and further devel-         an organized system of ill-treatment,
             oped by the ICTY, all who knowingly         and defendants have awareness of
             participate in a joint criminal endeav-     the nature of the system and an intent
             or can be held responsible for all          to further that system. There is some
             planned or foreseeable crimes               form of participation in the system.
             committed during the period of their        JCE III is the extended form, where
             participation. This mode of liability, as   responsibility for crimes committed
             well as that of co-perpetration, seems      beyond the common plan can be
             well suited to prosecutions in the EC.      incurred. This happens when some-
                                                         one—not necessarily the defendant—
                                                         commits a crime outside the common
                                                         purpose, but the act is a natural or
                                                         foreseeable consequence of the crimi-
      Most victims want the person who they
                                                         nal endeavor. Participants willingly
    know killed their family held accountable,           take a risk that additional predictable
 but internationalized courts do not have the            crimes will be committed. The various
                                                         forms may, and often do, overlap or
capacity to prosecute every crime committed.             occur parallel to each other, and thus
                                                         they are not mutually exclusive.20
                                                             The prosecution may indict sus-
                                                         pects separately or jointly, thus for
                 JCE is considered a form of indi-       example joint trials of Central
             vidual criminal responsibility (not         Committee members, Zone leaders,
             superior responsibility). A JCE is          or prison camp leaders are possible.
             composed of more than one person            Counts in the indictments will likely
             participating in some way (through          be limited to less than a dozen per
             assistance or other contribution)           indictee, since each crime must be
             in a common plan/design/purpose             proved beyond a reasonable doubt
             which amounts to or involves a justi-       and additional counts may add signifi-
             ciable crime. The common plan can           cant time to the trial phase. It would
             be agreed upon in advance or can            be useful for the prosecution to consid-
             materialize extemporaneously and it         er using persecution as a crime against
             can be inferred from the facts. There       humanity as one of the leading
             are three recognized forms of JCE.          charges. The crime of persecution has
             JCE I is the basic form, in which all co-   been extensively developed by the
             defendants share the same criminal          ICTY in particular, and is a valuable
             intent/goal. They knowingly partici-        means of taking a series of violent, dis-
             pate in some way and intend                 criminatory, or repressive acts—such
             the result. JCE II is the systemic form.    as murder, torture, rape, forced dis-
             It is a subset of JCE I and typically       placement, and inhumane treatment


             78                                                                       Open Society
                                                                         Players



and conditions—and wrapping them           personal property, money, and real
into one crime to tell a larger story      property unlawfully acquired may also
of abuse committed against a specified     be confiscated by the tribunal and
target group. It is a practical way to     returned to the state (Arts. 38-39).
reduce the number of counts in an          Ideally, a mechanism will be estab-
indictment without distorting the          lished to place such proceeds into a
historical record by ignoring other        fund for victims.
criminal activity. The primary disad-          Several legal issues will have to be
vantages of using persecution to           dealt with early on through interlocu-
capture a broad array of crimes are        tory decisions. For example, defen-
threefold. One is that the term “perse-
cution” does not necessarily indicate a
particular nature of a crime that may
be important to highlight. Thus, for       If the EC allows plea agreements,
example, a conviction of persecution
for a system of mistreatment—for           they must be treated sensitively
example, slave labor, rape, sexual slav-   and granted sparingly.
ery, torture, and starvation—may not
carry the same outrage as rape or sexu-
al slavery and obscures the sexual
nature of some of the crimes commit-       dants in virtually every other interna-
ted. Secondly, judges tend to fail to      tionalized court have challenged the
treat persecution with the seriousness     legitimacy of the courts. Two likely
it deserves at sentencing, by ignoring     EC indictees, Ta Mok and Duch, have
the fact that it encompasses not only      been held in detention since 1999
many serious crimes, but also crimes       without trial, raising very serious
committed repeatedly over a long           human rights concerns and pre-trial
period of time. Thirdly, it may be         detention issues. In 1979, a “people’s
difficult to establish that some of the    revolutionary tribunal” held an in
persecutorial acts were committed on       absentia trial against Pol Pot and Ieng
political, racial, or religious grounds,   Sary, convicting them of genocide and
although the fact that a majority          sentencing them to death. Although
  of Cambodians targeted at the time       considered little more than a show
were reportedly Buddhist or non-           trial, Ieng Sary’s defense team will
Communist may reduce some of these         likely raise the issue of double
evidentiary burdens.                       jeopardy. And in the 1990s, Ieng Sary
                                           and Nuon Chea were reportedly grant-
    The      maximum         punishment
                                           ed pardons after defecting from the
allowed to be imposed by the EC is
                                           Khmer Rouge, yet the Cambodian gov-
life imprisonment, in conformity
                                           ernment has more recently pledged
with international human rights
                                           not to give pardons or amnesties to
standards. The minimum sentence is
                                           any persons convicted by the EC.21
five years imprisonment. In addition,



Justice Initiative                                                              79
              The Extraordinary Chambers



              Managing expectations                      ICTY has only convicted 55 persons
              of the prosecutions                        through the appeals stage, and of
              It is vital that ordinary Cambodians       these, 14 were the result of guilty
              appreciate the real limitations the        pleas); if prosecutors fail to prove their
              EC—like other international/hybrid         case beyond a reasonable doubt, the
              tribunals—is likely to face, including     accused will be acquitted; suspects are
              restrictions on its prosecutorial scope,   entitled to fair trial guarantees and
              mandate, and jurisdiction. The prose-      minimum standards of treatment
              cutors are limited not only by the         which may conflict with rights of vic-
              applicable laws and statutes, but also     tims and witnesses; and many victims
              by logistical and practical obstacles,     who want to tell their stories to the
              including time limitations, financial      court may not be able to, particularly
                                                         if the crime they suffered has already
                                                         been adequately covered by other
Imperfect as these trials are likely to be, they         evidence or cannot be linked to a par-
                                                         ticular accused on trial. Nonetheless,
  stand as the last chance to provide judicial           there are many more positives than
 accountability for Khmer Rouge era crimes.              negatives in prosecuting mass atroci-
                                                         ties and holding high level culprits
                                                         accountable for their crimes. Further,
              constraints, and language considera-       the fact that the proceedings will
              tions. Memories fade, destroyed            primarily follow civil law practices
              homes and communities are rebuilt,         indicates that the trial processes
              witnesses die, injuries heal, evidence     may not be as onerous, lengthy, and
              is misplaced, fears and suspicions         detailed as in other tribunals (a fact
              impede cooperation, people go on           which is likely to have both positive
              with their lives and choose not to         and negative consequences).
              reopen past wounds, and so on.                 One of the most contentious issues
              Evidence, particularly documentary,        to anticipate concerns the number and
              medical, and forensic evidence, is         level of indictees tried by the EC. Most
              often intentionally destroyed or simply    victims want the person who they
              becomes lost or contaminated over          know killed their family or raped their
              time. Many other impediments to full       daughter held accountable, but inter-
              and satisfactory prosecutions remain       nationalized courts do not have the
              ever present. For example: investiga-      capacity to prosecute every crime com-
              tions into crimes against humanity
                                                         mitted during mass atrocity situations.
              and genocide tend to take many
                                                         Rarely are the people who carried out
              months, even years; trials for mass
                                                         orders or policies on the ground pros-
              atrocities are inevitably long and
                                                         ecuted in internationalized tribunals,
              complex; only a handful of individuals
                                                         and if they are, such prosecutions tend
              can be prosecuted in the three years
                                                         to be limited to those who were espe-
              allocated for Khmer Rouge trials
                                                         cially notorious for their brutality
              (for example, in the past 12 years, the
                                                         or sadism or individuals physically

              80                                                                       Open Society
                                                                         Players



responsible for the deaths or abuse of          Plea agreements are another very
large numbers of innocent people.           sensitive topic. Plea agreements were
    Some Cambodians will undoubted-         gradually accepted at the ICTY, but
ly be dissatisfied that the jurisdiction    the angry reaction on the ground
of the tribunal is limited to the period    in Bosnia-Herzegovina and Croatia
of April 17, 1975, to January 6, 1979, as   was palpable, with victims regularly
many serious crimes were committed          denouncing such actions. Survivors
outside these dates. Many will also be      reacted viscerally to any discussion
rightly disgruntled that those culpable     of “plea bargaining” or “plea negotia-
from other countries will not be held       tions,” a concept foreign to their
accountable for complicity they may         judicial system, as it was viewed as a
have had in destabilizing Cambodia,         means to bargain away responsibility
allowing the crimes to occur, or caus-      for their crimes. Initially, indictees
ing mayhem themselves.                      would agree to plead guilty to one
    Additionally, trials can give perpe-    count, such as persecution as a crime
trators a platform to present their         against humanity, in return for having
views, their defenses, and their ration-    other counts dropped. Responding in
alizations/excuses, and they may defi-      part to the fury these plea agreements
antly deny or express no remorse for        generated, however, the tribunal has
their crimes, thus pouring salt into        often ceased to drop all other charges,
wounds and deepening the pain and           insisting instead that the defendant
hostility. As all the defendants will be    plead guilty to most charges, recite in
elderly and perhaps frail or sickly,        detail the crimes he or she is admit-
there will be some natural tendency to      ting to in open court, demonstrate
show them compassion, particularly          genuine remorse, and agree to give
by the younger generation who do not        evidence against other accused. While
remember the atrocities. Some youth         this often results in a reduced sen-
may even believe them, refusing to          tence, it saves millions of dollars,
accept that Cambodians committed            avoids a long trial, and may serve to
atrocities against other Cambodians         convict higher level accused and estab-
for largely incomprehensible reasons.       lish a factual record of the crimes.
This will likely generate resentment        Although many victims in the former
among survivors who still remember          Yugoslavia are still dissatisfied with
the ruthlessness and cruelty attributa-     plea agreements, there is some grudg-
ble to the Khmer Rouge leadership.          ing recognition that it is useful for
Further, defendants will try all sorts of   an indictee to admit that a crime was
medical excuses (physical and mental)       committed, and that they are responsi-
to avoid prosecution or delay trials.       ble, as opposed to continuing to assert
(Milosevic, for example, uses his high      their innocence and to plead not
blood pressure to cause extensive trial     guilty. If the EC allows plea agree-
delays in the ICTY; the chamber only        ments, they must be treated sensitive-
sits for half-days three days a week        ly and granted sparingly, and used as
to minimize the stress on him.)             a tool to require less culpable actors


Justice Initiative                                                               81
The Extraordinary Chambers



to testify against those surviving lead-              and other logistical support (such
ers most responsible for the crimes.                  as security, translation, training, coun-
The Rules of Procedure and Evidence,                  seling, technology, computers, trans-
EC internal regulations, or other                     portation) and for UN agencies,
Cambodian laws will need to provide                   NGOs, and other organizations to do
some mechanism allowing and gov-                      what they can to improve the judicial
erning such agreements. For example,                  process and provide outreach and
the EC does not have the authority to                 other services throughout Cambodia
grant full immunity/amnesty from                      (through court monitoring, victim-wit-
prosecution by other courts to persons                ness support services, media support,
who may share responsibility for                      etc). When the trials are completed, it
war crimes, crimes against humanity,                  is hoped that they will have provided
or genocide, but the EC prosecution                   some measure of justice to victims
section can agree not to prosecute or                 of the Khmer Rouge crimes, that
it can agree to recommend a low or                    they will have positively affected
suspended sentence for persons coop-                  Cambodia’s domestic justice system,
erating with the tribunal.                            and that they will have created space
    There is widespread consensus                     and opportunity within Cambodia to
that, imperfect as these trials are                   begin broader justice and accountabil-
likely to be, they stand as the last                  ity initiatives, including perhaps
chance to provide judicial accountabil-               domestic trials of lower level accused,
ity for Khmer Rouge era crimes.                       truth commission-type mechanisms
Consequently, it will be important for                to officially recognize the full scope
governments to share intelligence                     of the Khmer Rouge crimes and who
information on the crimes with the                    shares responsibility for them, and
tribunal, to provide adequate funding                 some form of reparation.



Notes

Dr. Kelly Dawn Askin is senior legal officer, International Justice, with the Open Society Justice
Initiative.
1. See, for example, Philip Short, Pol Pot: Anatomy of a Nightmare (Henry Holt and Company, 2005);
David P. Chandler, A History of Cambodia (Westview Press, 2000); Ben Kiernan, The Pol Pot Regime:
Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975-1979 (Yale University Press, 2nd
ed., 2002); David P. Chandler, Brother Number 1: A Political Biography (Westview Press, 1999).
2. Most historians note that Pol Pot would likely not have been able to rise to power in Cambodia
had it not been for U.S. economic and military destabilization of Cambodia. See, for example,
Ben Kiernan, The Pol Pot Regime, 16. By 1975, Sihanouk was nominal head of the Khmer Rouge,
a position he retained until 1979.
3. The History Place, “Genocide in the 20th Century, Pol Pot in Cambodia 1975-1979 2,000,000
Deaths” (undated), available at: http://www.historyplace.com/worldhistory/genocide/pol-pot.htm.
4. See especially The Khmer Rouge Rice Fields: The Story of Rape Survivor Tang Kim, film directed by
Rachana Phat and Youk Chhang, DC-Cam (2004); Katrina Anderson, “Turning Reconciliation on
Its Head: Responding to Sexual Violence Under the Khmer Rouge,” Vol. 3(2) Seattle Journal for
Social Justice, 785-832 (2005).


82                                                                                       Open Society
                                                                                             Players



5. The Standing Committee of the Khmer Rouge Central Committee or Communist Party of
Kampuchea (CPK) consisted of: Pol Pot (Brother No. 1) as general secretary, Nuon Chea (Brother
No. 2) as prime minister and deputy secretary of the CPK, Ieng Sary (Brother No. 3) as deputy
prime minister for Foreign Affairs (and Pol Pot’s brother-in-law), Khieu Samphan as president
of the Khmer Rouge, Ta Mok (Brother No. 7, a.k.a. Ung Choeun) a Khmer Rouge leader and
Zone Secretary, and Ieng Thirith, wife of Ieng Sary. Other important surviving leaders include
Duch (Kaing Khek Iev) who operated the S-21 torture center, and Sou Met and Meah Mut, CPK
Military Division chairmen. See, for example, Khmer Rouge, from Wikipedia, the free encyclopedia,
available at: http://en.wikipedia.org/wiki/Khmer_Rouge; Steve Heder with Brian D. Tittemore,
Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge, Documentation
Center of Cambodia (2004).

6. Charter of the International Military Tribunal, Annexed to the Agreement for the Prosecution
and Punishment of the Major War Criminals of the European Axis (London Agreement), August 8,
1945, 82 U.N.T.S. 59; 279 Stat. 1544; Special Proclamation by the Supreme Commander for the
Allied Powers at Tokyo, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20. The Annex to the Special
Proclamation contains the Charter of the International Military Tribunal for the Far East, Jan. 19,
1946, 4 Bevans 21, as amended Apr. 26, 1946, 4 Bevans 27.

7. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, at
Chap. VII.

8. See Resolution 808, U.N. Security Council, U.N. Doc. S/RES/808 (1993) (establishing
the International Criminal Tribunal for the former Yugoslavia– the “ICTY Statute”).

9. See Resolution 955, U.N. Security Council, U.N. Doc. S/RES/955 (1994) (establishing
the International Criminal Tribunal for Rwanda–the “ICTR Statute”).

10. Rome Statute of the International Criminal Court, 1998 Sess., U.N. Doc. A/CONF.183/9 (1998),
entered into force July 1, 2002 (ICC Statute).

11. Hybrid or international courts generally have both international and domestic prosecutors,
judges, and defense counsel, and are typically located in the countries where the crimes were
committed. See e.g., Statute of the Special Court for Sierra Leone, pursuant to S.C. Res. 1315
(2000) of August 14, 2000, available at www.sc-sl.org. See also Regulation 2000/15 “On the
Establishment of Panels [in East Timor] with Exclusive Jurisdiction over Serious Criminal Offences,”
UNTAET/Reg/2000/15, of June 6, 2000; and Regulation 2000/64, “Assignment of International
Judges and Prosecutors [in Kosovo] and Change of Venue,” of December 15, 2000, available at:
www.unmikonline.org.

12. See for example, Amnesty International, “Pinochet Case: One Step Closer to Justice,” October 8,
1999, available at http://web.amnesty.org/library/Index/ENGEUR450371999?open&of=ENG-2U3;
Derechos Human Rights, “Chile: Criminal Procedures against Pinochet in Spain,” (undated),
available at: http://www.derechos.org/nizkor/chile/juicio/eng.html; Human Rights Watch, “The
Case against Hissene Habre,” September 2005, available at: http://www.hrw.org/justice/habre/;
Amnesty International, “The Habre Legacy,” October 16, 2001, available at:
http://web.amnesty.org/library/Index/ENGAFR200042001?open&of=ENG-TCD.

13. See articles by Craig Etcheson and H.E. Sok An in the present issue of Justice Initiatives.

14. See Amnesty International, “Kingdom of Cambodia: Amnesty International’s Positions
and Concerns Regarding the Proposed ‘Khmer Rouge’ Tribunal,” April 25, 2003, available at
http://web.amnesty.org/library/Index/ENGASA230052003?open&of=ENG-KHM.

15. See, for example, Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide
(Praeger, 2005); Peter Maguire, Facing Death in Cambodia (Columbia University Press, 2005);
Tom Fawthrop and Helen Jarvis, Getting Away With Genocide: Cambodia’s Long Struggle against the
Khmer Rouge (Pluto Press, 2004); Suzannah Linton, Reconciliation in Cambodia (2004); Loung Ung,
First They Killed My Father: A Daughter of Cambodia Remembers (HarperCollins, 2000); Heder and
Tittemore, Seven Candidates for Prosecution; Dith Pran and Kim DePaul, eds., Children of Cambodia’s
Killing Fields: Memoirs by Survivors (Yale University Press, 1999); David Chandler, Voices from S-21:
Terror and History in Pol Pot’s Secret Prison (University of California Press, 1999); Ben Kiernan,
The Pol Pot Regime. See also “The Report of the Group of Experts for Cambodia Pursuant to General


Justice Initiative                                                                                 83
The Extraordinary Chambers



Assembly Resolution 52/135,” by Ninian Stephen, chairman, Rajsoomer Lallah, and Steven R.
Ratner, February 18, 1999, annexed to Identical Letters Dated 15 March 1999 from the Secretary-
General to the President of the General Assembly and the President of the Security Council, UN
Docs. A/53/850 and S/1999/231, March 16, 1999.
16. See www.dccam.org.
17. Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as
promulgated on October 27, 2004 (NS/RKM/1004/006), amending the Law on the Establishment
of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed
during the Period of Democratic Kampuchea, Passed by National Assembly on October 4 and by
Senate on October 8, 2004, Phnom Penh Cambodia; and Agreement between the United Nations
and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of
Crimes Committed during the Period of Democratic Kampuchea, October 19, 2004, both available
at: www.cambodia.gov.kh/krt/.
18. See www.cambodia.gov/kh/krt/english/index.htm.
19. See especially Prosecutor v. Tadic, Judgement, 1T-94-1-A, 15 July 1999 [Tadic Appeals Chamber
Judgement]; Prosecutor v. Krstic, Judgement, IT-98-33-T, 19 April 2004 [Krstic Trial Chamber
Judgement]; Prosecutor v. Kvocka, Judgement, IT-98-30-T, 2 Nov. 2001[Kvocka Trial Chamber
Judgement]. The JCE theory of liability is now explicitly included in other international and hybrid
tribunal statutes, including that of the ICC and the Special Court for Sierra Leone. See www.icc-
cpi.int; www.sc-sl.org.
20. See, for example, Prosecutor v. Tadic, Judgement, 1T-94-1-A, 15 July 1999 [Tadic Appeals Chamber
Judgement], at paras. 195-229; Prosecutor v. Kvocka, Judgement, IT-98-30-T, 2 Nov. 2001, at paras.
77-119 [Kvocka Trial Chamber Judgement]; Prosecutor v. Kvocka, Judgement, IT-98-30-A, 28 Feb.
2005, at paras. 77-119 [Kvocka Appeals Chamber Judgement]; Prosecutor v. Ntakirutimana,
Judgement, ICTR-96-10A and ICTR-96-17A, 13 Dec. 2004, at paras. 461-468; Prosecutor v.
Milutinovic et al., Decision on Dragoljub Odjanic’s Motion Challenging Jurisdiction–Joint Criminal
Enterprise, IT-99-37-AR72, 21 May 2003 [Ojdanic Joint Criminal Enterprise Appeal Decision];
Prosecutor v. Stakic, Judgement, IT-97-24-T, 31 July 2003, paras. 438-442 [Stakic Trial Chamber
Judgement]; Prosecutor v. Krnojelac, Judgement, IT-97-25-A, 17 Sept 2003, paras. 64-124 [Krnojelac
Appeals Chamber Judgement]; Prosecutor v. Vasiljevic, Judgement, IT-98-32-A, 25 Feb. 2004, paras.
94-111 [Vasiljevic Appeals Chamber Judgement]; Prosecutor v. Brdjanin, Decision on Interlocutory
Appeal, IT-99-36-A, 19 March 2004 [Brdjanin Interlocutory Appeal Decision]; Rwamakuba v.
Prosecutor, ICTR-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint
Criminal Enterprise to the Crime of Genocide, 22 Oct. 2004 [Rwamakuba Interlocutory Appeal
Decision on JCE and Genocide].
21. See, for example, BBC News, “Key Figures in the Khmer Rouge,” October 4, 2004),
available at: http://news.bbc.co.uk/1/hi/world/asia-pacific/2856771.stm; Youk Chhang, Dith
Pran, and Ben Kiernan, “Bloody Tourists in a Land of Skulls,” January 2, 1999, available at:
http://www.dithpran.org/guardian.htm; Kur Munthit, “Cambodia’s Legislature Bars
Government from Pardoning Khmer Rouge,” October 5, 2004, available at:
http://www.genocidewatch.org/CambodiapassesamendedKRTribunallaw5October2004.htm;
Richard Woodd, “Price of Justice for Khmer Rouge up $10m,” June 17, 2004, available at
http://www.globalpolicy.org/intljustice/tribunals/cambodia/2004/0617price.htm.




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CHALLENGES

Judging Genocide
Genocide was recognized as a legal        across the globe was called genocide
concept only fairly recently. Patricia    by some groups, often calculatedly,
M. Wald considers the complexities of     for its emotional effect: Vietnam, the
genocide jurisprudence.                   Democratic Republic of Congo, Sierra
                                          Leone, as well as Bosnia, Rwanda and
Genocide is generally considered
                                          Cambodia. One writer describes the
the most serious of the international
                                          prevalent attitude as, “If this is awful,
or universal crimes. Although many
                                          it must be genocide.”3 In other cases
genocides have taken place in history,
                                          the opposite has been true: diplomats
genocide was defined as a separate
and distinct crime only after World       were forbidden to use the “G” word
War II—it did not appear in the           for fear it would bring unwelcome
indictments or the judgments at           pressure to do something positive by
Nuremberg. The terrible crimes            way of dramatic intervention in the
involved in the Holocaust were            beleaguered country.4 Thus, the most
charged as crimes against humanity        important job for an international
or as part of Germany’s preparations      tribunal is to give precision and
for a war of aggression. Within           predictability to a concept like geno-
months of the end of World War II,        cide that has been used often indis-
however, the United Nations General       criminately and even recklessly. To
Assembly passed a resolution recog-       a significant degree, the International
nizing genocide as a separate crime       Criminal Tribunal for Rwanda (ICTR)
and the Convention Against Genocide       and the International Criminal
was adopted by the UN in 1948.1 Still,    Tribunal for the former Yugoslavia
for nearly 50 years thereafter, the       (ICTY) have done this, though some
charge of genocide was legally con-       important questions of interpretation
fined to situations arising out of the    in the law of genocide remain
Holocaust such as Adolph Eichmann’s       unanswered. But the two Tribunals
trial in Jerusalem. That is, until the    have done something else even more
ad hoc tribunals for war crimes           important—they have applied the
committed in Rwanda and Bosnia            legal definition of genocide in the
came along in the mid-nineties.2          Convention to situations very different
    At the same time, the term “geno-     factually and politically from the
cide” took on a life of its own in        Holocaust, and in so doing they have
the popular press and even in political   liberated the crime from its historical
and some diplomatic circles. Virtually    origins. No longer do scholars decide
every massacre or mass execution          if a mass atrocity is genocide by



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            The Extraordinary Chambers



            comparing it in scope and method            be invoked. This exclusivity notion is
            of destruction to the Nazi extermina-       one that judges called on to decide
            tion of Jews, Roma, or Poles, but           genocide charges must keep in mind.
            rather they must look carefully to see      The laconic text of the genocide defini-
            if the facts in the specific case fit       tion of the Convention, as we will see,
            the legal definition as interpreted by      is frequently susceptible to different
            the court. And that, of course, is exact-   interpretations, and, indeed, different
            ly what judging genocide is about.          courts have interpreted parts of that
            Genocide is, in one author’s words,         definition differently. As time goes
            “a genuine legal norm of general            by, some of those differences may be
            application rather than a symbol of a       reconciled, but as of now a tribunal
            unique historical phenomenon.”5             may be faced with definite choices
                                                        as to what the law means.
                                                            One other caution bears noting
                                                        before embarking on a discussion of
The most important job for an international             the legal requirements of genocide: all
tribunal is to give precision and predictabili-         genocides—crimes against humanity,
                                                        too—have complex historical, social,
  ty to a concept like genocide that has been           and political roots. Some courts have
   used indiscriminately and even recklessly.           involved themselves in searching out
                                                        these roots, and both prosecution and
                                                        defense parties are prone to offer them
                                                        up as proof of guilt or justification.
                At the same time there is a concern     Generally, I believe it is a mistake for
            among international commentators            courts to go down that road too far.
            and jurists that the currency of geno-      Judges are not competent historians
            cide not be diluted, that it be saved       and they must be aware they are get-
            for the worst and most atrocious            ting polarized versions of history hand-
            attempts to wipe out vulnerable             ed to them by the parties’ chosen
            groups. Judges sitting on genocide          experts. Unless the history has some
            cases have said this explicitly.6 Courts    direct relationship to the intent or
            have been warned against interpreting       knowledge of the accused in the con-
            the Genocide Convention’s require-          text in which he or she committed
            ments too expansively to include too        the alleged crime or to an element of
            much.7 The more conservative schol-         the crime itself—as for example in the
            ars point out that just because an          case of a crime against humanity,
            atrocity is not labeled genocide doesn’t    where it must be proved that the spe-
            mean it will go unpunished; it will         cific crime was part of a widespread
            likely still be punishable as a crime       and systematic campaign against civil-
            against humanity or even a war              ians, or, in genocide, that a particular
            crime.8 But genocide has its own            type of group has been targeted—the
            unique stigma and should not lightly        court should forget the history or



             86                                                                     Open Society
                                                                    Challenges



merits of the conflict, and concentrate   destroy in whole or in part a national,
on the specific act of genocide that is   ethnical, racial, or religious group as
charged.                                  such.” The five acts are: killing mem-
    With reference to Cambodia, it        bers of the group; causing serious
should be noted that the Law on the       physical or mental harm to group
Establishment of the Extraordinary        members; deliberately inflicting on
Chambers specifically includes geno-      the group conditions calculated to
cide within the court’s jurisdiction      bring about their physical destruction;
(Article 4). Experts and commentators     imposing measures intended to
over the years have differed as to        prevent births within the group; and
whether the horrendous events             forcibly transferring children from
between 1975-1979 meet the rigorous
definition in the Genocide Convention,
the same one adopted and restated
in the Extraordinary Chamber’s law.       Experts and commentators have differed
Those events have been characterized
                                          on whether the horrendous events of
as genocide by the United States
Congress, labeled “auto-genocide” by a    1975-1979 meet the rigorous definition
UN Rapporteur, and their status left to   in the Genocide Convention.
be decided by the courts in the Report
of the Group of Experts for Cambodia
created by the UN.9 It seems likely
that if genocide is charged by the        one group to another. The hardest part
Extraordinary Chamber’s prosecutors,      to prove in most genocide cases is
the strict legal definition will be the   the very specific intent “to destroy in
essential lens through which the terri-   whole or in part [the group] as such.”
ble facts must be viewed.                 It is not enough to want to destroy
                                          some or even a majority of members
                                          of the group—a perpetrator of geno-
Defining genocide
                                          cide must set out to destroy the group
As to the definition of genocide that     (or a distinct part of it) “as such.” This
will govern a court’s decision-making,    goal of group destruction is why geno-
there are minor variations—but only       cide is at the apex of contemptible
minor—between that used in the            crimes—it involves the extinction of a
statutes of the two ad hoc tribunals      distinct set of people from the world
and the more comprehensive defini-        community, not just varied individu-
tion provided in the Rome Statute         als, no matter how many.
establishing the International Criminal
Court (ICC).10 The definition, in
                                          Intent
essence, comes straight out of the
Genocide Convention. Genocide             Over time, genocide has come to be
involves the commission of one or         distinguished from “crimes against
more of five acts “with the intent to     humanity.” Many of the underlying



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             The Extraordinary Chambers



             prohibited acts that give rise to geno-    plagued and confused courts. It comes
             cide and to a crime against humanity       down to the notion that the accused
             are the same. But the perpetrator of a     may have intended to destroy the
             crime against humanity must have           group for several reasons—he may, for
             knowledge that his or her act is part of   example, have been motivated to get
             a widespread and systematic cam-           rid of it in order to grab land, or even
             paign against civilians. The perpetra-     to promote himself in the eyes of his
             tor need not be shown to share any         superiors. But, to reiterate, he must,
             intent as to the success of the bigger     inter alia, have the intent to destroy
             campaign.11 Genocide, on the other         the group “as such”—he cannot be act-
                                                        ing just out of greed against his neigh-
                                                        bors who happen to be members of
                                                        the group, or mechanically following
        Defendants are likely to argue that the         orders to kill on an ad hoc basis just
killings were motivated by massive programs             to get the promotion. It is clear that
                                                        discerning the precise intent of the
      of social and economic change, with no
                                                        perpetrator may be difficult, especially
        intent to destroy any particular group.         when it must be gleaned from circum-
                                                        stances, and no tell-tale memoranda
                                                        (such as the Nazis left behind) exist.
             hand, does not require either knowl-          On a practical level, it is unlikely
             edge of or even the existence of a         that most prosecutors would bring a
             wider attack in the background. The        genocide charge against a low-level
             ICTY has held that a single person         single defendant even if the required
             without affiliation with anyone else       intent could be proved. Nonetheless,
             or any plan or policy could commit         we did have one such prosecution
             genocide if he or she had the statutory    while I was at the ICTY—a camp shift
             intent to destroy the group.12 The         commander who called himself
             ICC, however, has added a require-         “Adolph” after Hitler, shot a “quota” of
             ment in its definition of the elements     Muslim prisoners every day and
             of the crime that the perpetrator’s act    proudly announced that in the new
             be “in the context of a manifest pattern   Serbia, all Muslims would be killed or
             of similar conduct directed against        enslaved. The Appeals Chamber found
             that group or was conduct that could       that there was evidence enough of
             effect such destruction.”13                genocidal intent to go forward to trial
                Thus, genocide can be committed         but in its discretion decided it was
             by an individual, of high or low posi-     not worth the court’s resources since
             tion; it need not be done pursuant         the accused had already pled guilty to
             to an overall policy or plan; and geno-    lesser crimes that would keep him in
             cide does not even require a racist        prison for the rest of his natural life.14
             or hate motive based on religious or       I doubt if many “lone wolf” prosecu-
             ethnic grounds. This latter difference     tions for genocide will be brought
             between intent and motive has              against low-level perpetrators in the


             88                                                                       Open Society
                                                                       Challenges



future, but rather the focus will be on      The major dispute here has been
a Milosevic or other highly-positioned       whether genocide includes destroying
civic or military officials.                 the culture rather than the physical
    Among several obvious areas of           existence of a group, i.e., destroying its
contention in any Extraordinary              places of worship, forbidding its lan-
Chambers trial on genocide charges           guage, destroying all the indicia that
would be proof of the specific intent to     make the group distinct. Although the
destroy a protected group in whole or        latter may be evidence of a broader
in part “as such.”15 It has been pointed     intent to destroy the group physically,
out that Khmer Rouge defendants are          most courts have said the more limit-
not apt to have left the Nazi-like paper     ed intent to destroy the group cultural-
trail of intent behind them but rather       ly is not by itself enough to constitute
that any genocidal intent may have to
be gleaned in large part from circum-
stances and the nature of their acts.        The intent must be to destroy a group—
This assumes, of course, that the
                                             in whole or in part.
prosecution would be able to sur-
mount an earlier obstacle of demon-
strating the alleged genocidal acts
                                             genocide. Thus, the Yugoslav Tribunal
were targeted at a group that fell
                                             has held that imprisoning Bosnian
within the definition’s protective orbit,
                                             Muslims in a concentration-like camp
a matter discussed subsequently.
                                             with horrible food, low medical care,
The Khmer Rouge defendants, if they
                                             and random killing and torture was
admit to acts within the definition, are
                                             not genocide because it lasted only a
likely to argue that killings, maltreat-
                                             few months and not everyone was tar-
ment, and forcible transfers were
                                             geted for killing. On the other hand,
motivated by massive programs of             everyone seems to agree that the
social and economic change, with             infamous expulsion of Armenians in
no concurrent intent to destroy any          World War I in which they were forced
particular protected group within            by the Turks to march with hands
the population.16                            tied behind them, privy to assaults
                                             and robbery without food or care, was
Destruction of a group                       a kind of genocide though it happened
The genocidal intent has to be to            before the crime was legally defined.17
“destroy” a group. That means—and               One case on which I sat at The
here there is a wide consensus though        Hague illustrates the complexity of
not absolute unanimity—to physically         applying the definition. It involved
or biologically destroy the group (or        the Srebrenica massacres. After that
part of it), not just to humiliate or even   town—a U.N. enclave—was taken
to make the group suffer physically,         militarily by the Bosnian Serbs, all
but to wipe it off the face of the earth.    the 8,000 young men, civilians and




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         The Extraordinary Chambers



         military, were captured and subjected      the absence of alternative explanations
         to mass executions and secret burials      for the alleged genocidal acts. The
         in one week. The Serbs, however,           Bosnian Serbs in the Srebrenica mas-
         bused the women and children out of        sacre, for example, originally claimed
         the territory. The ICTY held that by       they had executed only soldiers in the
         killing all the men, the Serbs intended    course of combat; recent massacres in
         to—and did—ensure that the women           Darfur were explained as attempts to
         and children would not return to           flush out rebel soldiers from villages
         Srebrenica because of the patriarchal      harboring them.20 Perhaps the deepest
         nature of the society; and, indeed, that   division among genocide commenta-
                                                    tors and judges is the issue of whether
                                                    an accused can ever be convicted of
The greatest obstacle prosecutors might             genocide—or participation therein—if
                                                    he lacks the personal intent to destroy
encounter would be defining the victims             the group but has knowledge of the
of Khmer Rouge atrocities as a “national,           fact that his act will have that conse-
   racial, ethnical or religious group.”            quence. Some believe that there is and
                                                    should be a trend toward interpreting
                                                    genocide as requiring only that the
                                                    perpetrator know his act will work to
         is what has happened.18 The Muslims        destroy the group, especially when the
         in Srebrenica had been destroyed as
                                                    actor is in a high enough position to be
         a group. But if the Serbs had merely
                                                    able to do something effectively to stop
         deported everyone—as they did in
                                                    the genocide. When he fails to do any-
         some other areas—it would probably
                                                    thing in such circumstances and espe-
         have been a crime against humanity
                                                    cially when he actively contributes to
         but not genocide.
                                                    the genocide going forward, should
             Intent to destroy has often to be
                                                    that not be enough to satisfy the intent
         inferred from circumstances; most
                                                    requirement?21 The Appeals Chamber
         genocidal actors, unlike the camp
                                                    at The Hague said, in the Krstic case,
         commander I referred to, do not put
                                                    that in such a case the accused is
         their real intent on paper or even talk
                                                    aiding and abetting genocide but he or
         of it (they learned their lessons from
                                                    she cannot be found guilty of directly
         the Nazis at Nuremberg who were
                                                    perpetrating genocide.
         convicted on their voluminous paper
         trails).19 Some of the circumstances          In Krstic, the commander of the
         from which tribunals have inferred         Drina Corps knew what was happen-
         genocidal intent include (apart from       ing in the genocidal killings and he
         explicit oral and written statements):     neither acted to stop them nor refused
         the scale and systematic nature of         to contribute his battalion assets to
         assaults on a group; whether other         help carry them out. He had, however,
         groups are spared such conduct; or         not initiated the genocide, nor was he
                                                    or his troops the prime mover in its



         90                                                                     Open Society
                                                                       Challenges



execution (the evidence showed that          “In whole or in part”
General Ratko Mladic spearheaded             Finally, there is another difficult
the genocide.)22                             decision that faces a judge trying a
    There is a political tension here        genocide case. The intent must be to
between genocide’s special intent            destroy a group—in whole or in part.
requirements and the doctrine of             How to define the group is an under-
command responsibility, so critical in       taking which is very fact-specific to
many international tribunal prosecu-         each case. The genocide definition
tions. There is no question that             says it applies only to a “national, eth-
with crimes of war or crimes against         nical, racial, or religious group.”
humanity, the doctrine of command            Courts have agreed that the identifica-
responsibility says that if a leader         tion of such groups need not be scien-
knows or should have known his               tifically-based (there is little basis for
troops are about to or have committed        distinguishing the Tutsis and Hutus
crimes, and does nothing to prevent or       in Rwanda on any such objective
punish them, he is criminally respon-        grounds).24 Roughly, the categories
sible.23 The critical issue in genocide is   can be bound to the following ele-
whether that doctrine applies similarly      ments: “national” means citizenship;
with genocide or whether, as many            “ethnical” a common culture; “racial,”
argue, genocide is so special that every     inherited physical traits; and “reli-
person convicted of either being a           gious,” sharing a mode of worship.
principle or aider and abettor must          These are not tightly defined charac-
still have the personal intent to destroy    teristics: the real criterion is whether
the group. That question is still basi-      objectively the “group” has been recog-
cally undecided in genocide jurispru-        nized and identified by the rest of
dence. There is little doubt, however,       society—and especially the perpetra-
that if a strict interpretation—requir-      tors of the alleged genocide—as dis-
ing personal intent to destroy a group       tinct from the rest of society. Usually it
on the part of every person who may          encompasses vulnerable minorities
not have desired the extinction of the       that fit loosely into the enumerated
group on his own but is willing to go        categories as perceived by the majority.
along and actively and substantially         Additionally, the ICTY has held that a
contribute to the genocide enterprise        “group” can be defined in exclusionary
with full knowledge of its conse-            terms, i.e., non-Serbs, including
quences and an ability to do some-           Muslims or Croatians or others have
thing about it—becomes the norm, we          been held to constitute a targeted
will have fewer genocide convictions         “group.”25 The Rwanda Tribunal has
even though many genocides may               gone further and said that any stable
occur. This is ultimately a policy ques-     and permanent group could be includ-
tion but one which, unfortunately,           ed in the “group” definition,26
lands in the laps of judges who must         although again the more conservative
decide individual cases.                     interpretation is that a court cannot go
                                             beyond a reasonable definition of


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The Extraordinary Chambers



racial, religious, ethnical or national—     “part” of the Bosnian Muslims, and,
as say, for instance, gender or political,   if so, on what basis should that “part”
which are key candidates for any             be defined? There were about 37,000
expansion of the definition but not          Muslims in Srebrenica. The “in part”
recognized as being in the Convention        language was construed to include
definition. The “as such” wording adds       both quantitative and qualitative ingre-
to the requirement of the intent to          dients. That is, the size of the “part”
destroy the group—“as such” is gener-        must ordinarily be substantial in
ally interpreted as an accentuation of       respect to the number of the whole
the requirement that the acts be done        group (not a neighborhood or a coun-
to destroy the group, not its individual     ty). But more important, qualitatively
members.27                                   the destruction of the “part” must have
    But, here again, let me provide          a considerable impact on the survival
an example of the complexity facing a        of the whole group. In the Srebrenica
court in defining the relevant group—        case, the Appeals Chamber found
                                             that the destruction of a Muslim com-
a decision which can be critical in
                                             munity in an otherwise overwhelm-
deciding if the proof shows that the
                                             ingly Serbian territory was of great
group has in fact been targeted for
                                             strategic importance because it imped-
killing. In the Holocaust paradigm it
                                             ed Serbia’s drive for a contiguous
was relatively easy—European Jewry
                                             piece of territory from sea to sea.
was the group under siege and it was
                                             The Srebrenican Muslim community
a distinct one; the design need not
                                             was also emblematic because in the
have been to destroy Jews all over
                                             world’s eyes it had become a proxy
the world.28 The Tutsis in the Rwanda
                                             for the fate of all Bosnian Muslims,
genocide were similarly readily identi-
                                             and if it went down, the impact on
fied as the “group.”29 On the other
                                             other Bosnian Muslims fighting for
hand, what was the “group” in                their survival would likely be disas-
Srebrenica? The prosecution argued           trous.31 Another ICTY panel has held
it was the Srebrenica Muslims—the            that the Muslim citizens imprisoned
Trial Chamber in Krstic said no;             and executed in 1992 in the Prijedor
Srebrenica Muslims were not so               corridor—a strip of Bosnian territory
distinct from Muslims throughout             between Serbia and Serb-occupied
Bosnia as to be a separate ethnic            Croatian Krajina—were a cognizable
or religious group.30 The trial court        “part” of a group under the same
settled for a definition of the “group”      definition. Thus, a part of a group
as Bosnian Muslims, who had been             living in a geographical sector can be a
recognized as a distinct group in            legitimate “part” of a larger group for
the Yugoslavian constitution—there           purposes of prosecuting genocide, but
were 250,000 Muslims in Bosnia.              only if it has some distinguishing
    The next issue became: was it            characteristics in view of its impor-
enough to show an intent to destroy          tance to the rest of the group so that




92                                                                       Open Society
                                                                     Challenges



its destruction would not be a matter      sets out to destroy a part of its own
of numbers only. There has also            membership, it fits the requirement
been some discussion in the literature,    of destroying a national group “in
and in courts, suggesting that a           part”—hence the term “auto-geno-
“part” could be a segment of a popula-     cide.” This is not however a widely
tion—usually “leaders”—or military,        accepted theory.35 Thus far only the
or police, whose functioning is so vital   Rwandan Tribunal among the interna-
to the whole group, that if they are       tional courts has departed from the
destroyed the whole group might            groups listed in the Convention to
perish.32 This language throws up          declare that any “stable and perma-
extremely difficult concepts to deal       nent group” may qualify, but its deci-
with given the interdependence of          sion36 has been criticized and has yet
many communities today.                    to be followed: it would be surprising
    Undoubtedly the greatest obstacle      if the Cambodian court broke new
the Extraordinary Chambers’ prosecu-       ground in this respect.
tors might encounter in a genocide             Judging genocide is a difficult and
charge would be the qualifications         very fact-specific exercise. The statuto-
of the victims of Khmer Rouge atroci-      ry definition is demanding and few of
ties as a “national, racial, ethnical or   its elements are crystal clear. It has not
religious group.” Reportedly (though       been changed for almost 60 years and
it is always risky to predict what evi-    perhaps in view of its accelerated judi-
dence may actually surface in a trial)     cial use in the last decade, some
the alleged atrocities were committed      aspects of the definition might merit
by national leaders principally against    reconsideration. Genocide has many
their own populace, not specific racial,   faces and guises, as we have learned
religious, or ethnical (sic) segments      from the ad hoc tribunals and will like-
thereof—although it is always possible     ly learn again from some of the nation-
that smaller traditionally defined         al courts like Cambodia and Iraq. And
genocides might have been committed        while it is the wickedest of terrible
within the context of larger campaigns     crimes, judges must impartially—to
against the more general populace.33       the best of their ability—apply its terse
Indeed Cambodian leaders proposed          but sometimes ambiguous definition
in 1989 to include in the legislation a    to myriad varied fact situations not
much wider definition of groups eligi-     anticipated by the 1948 Convention’s
ble for genocide inclusion that covered    drafters. Cambodia’s embryonic tribu-
“wealth, level of education, sociologi-    nal may have the opportunity to
cal environment . . . allegiance to a      contribute to this development.
political system or regime, social class       At the same time, the Cambodian
or social category;” but were dissuaded    court must be aware of the lively
by UN negotiators and eventually           debate over whether any of the nefari-
accepted the Convention definition.34      ous activities of the Khmer Rouge
    One theory has been put forth          actually were carried out with an
that when a majority national group        intent to physically destroy a discrete


Justice Initiative                                                                93
The Extraordinary Chambers



racial, religious or ethnic group                    tuals versus peasants, urban versus
among its wide swath of victims,                     rural, rich versus poor. Even if the
or whether the unfortunate victims                   latter is true, recourse for inhumane
instead just paid the price for a                    treatment can be found in the catego-
“bizarre” social and cultural revolution             ry of crimes against humanity, but
that pitted old versus young, intellec-              genocide may be impossible to prove.


Notes

Patricia M. Wald served as a judge on the U.S. Court of Appeals for the D.C. Circuit (1979-1999)
and as its chief judge (1986-1991). Additionally, she was a judge on the International Criminal
Tribunal for the former Yugoslavia (1998-2001). She is a board member of the Open Society
Justice Initiative.

1. Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature
Jan. 12, 1951, 78 U.N.T.S. 277 (“Genocide Convention”).

2. See, e.g., Resolution 808, U.N. Security Council, U.N. Doc. S/RES/808 (1993) establishing the
International Criminal Tribunal for the Former Yugoslavia (“ICTY Statute”); Resolution 955, U.N.
Security Council, U.N. Doc. S/RES/955 (1994) establishing the International Criminal Tribunal
for Rwanda (“ICTR Statute”).

3. Helen Fein, “Genocide, Terror, Life Integrity, and War Crimes: The Case for Discrimination,”
in George J. Andreopoulos (ed.), Genocide: Conceptual and Historical Dimensions, Philadelphia:
University of Pennsylvania Press (1994), 95.

4. Samantha Power, “Bystanders to Genocide,” Atlantic Monthly (September 2001), 763.

5. Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals, London: Oxford University
Press (2005), 199-200.

6. Prosecutor v. Jelisic, IT-95-10-A (Appeal Judgment), 5 July 2001 (Separate Opinion of Judge Wald);
Prosecutor v. Stakic, IT-97-24-T (Trial Judgment) 31 July 2003, para. 502.

7. See, e.g., William A. Schabas, Genocide in International Law, Cambridge: Cambridge University
Press (2000), 9 (noting that “[i]t has become apparent that there are undesirable consequences to
enlarging or diluting the definition of genocide” because it “weakens the terrible stigma associated
with the crime and demeans the suffering of its victims” and “is also likely to enfeeble whatever
commitment States may believe they have to prevent the crime.”)

8. Schabas, Genocide in International Law, 10.

9. For more details on these conclusions see Schabas, Genocide in International Law, 118-119.

10. The definition of genocide in the statutes of the ICTY, ICTR and ICC, repeats that of the
Genocide Convention: “any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on
the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring
children of the group to another group.” See Article 4(2), ICTY Statute; Article 2(2), ICTR Statute;
Article 2, Genocide Convention; Article 6, Rome Statute of the International Criminal Court
(“Rome Statute”). Notably, however, the Rome Statute defines attempts and conspiracy more
broadly than previous tribunals. For example, while the ICTY and ICTR Statutes and the Genocide
Convention prohibit genocide, “conspiracy to commit genocide,” “direct and public incitement
to commit genocide,” “attempt to commit genocide,” and “complicity in genocide” (ICTY Statute,
Art. 4(3); ICTR Statute, Art. 2(3); Genocide Convention, Art. 3), Article 25(3) of the Rome Statute



94                                                                                      Open Society
                                                                                      Challenges



provides that “[i]n accordance with this Statute, a person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person,
regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in
its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a
group of persons acting with a common purpose. Such contribution shall be intentional and shall
either:

   (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group,
   where such activity or purpose involves the commission of a crime within the jurisdiction of the
   Court; or

   (ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences its execution by means of a
substantial step, but the crime does not occur because of circumstances independent of the person’s
intentions. However, a person who abandons the effort to commit the crime or otherwise prevents
the completion of the crime shall not be liable for punishment under this Statute for the attempt to
commit that crime if that person completely and voluntarily gave up the criminal purpose.”

11. Mettraux, International Crimes, 173. See also Prosecutor v. Kunarac et al, IT-96-23 & 23/1 (Appeal
Judgment), 12 June 2002, para. 103.

12. Jelisic (Appeal Judgment), para. 48.

13. Compare International Criminal Court, Elements of Crime and Rules of Procedure, Article 6(a)
with Rome Statute, Article 6.

14. Jelisic (Appeal Judgment), paras. 73-77.

15. I note that the translation of the Extraordinary Chambers’ statute transposes the Convention defi-
nition of “as such” to “such as.” I assume this is a technical error, but it could have consequences if
not corrected; meaning could be attributed to the omission of the traditional phrase.

16. Schabas, Genocide in International Law, 145 and note 296.

17. Mettraux, International Law, 239.

18. Prosecutor v. Krstic, IT-92-33-T, 2 Aug. 2001 (Trial Judgment), paras. 48-52, 90-94, 720.

19. See, e.g., Eugene Davidson, The Trial of the Germans, Columbia: University of Missouri Press
(1997), 33 (noting that the “truckloads of documents,” including “those of the SS alone [which]
filled six freight cars” proved “so detailed and in such quantity that all the prosecution and defense
lawyers together could scarcely master them”).

20. For a more comprehensive list of factors considered by courts in assessing the existence of
genocidal intent, see Mettraux, International Law, 283-4.

21. Alexander K.A. Greenawalt, Note, Rethinking Genocidal Intent: The Case for a Knowledge-Based
Interpretation, 99 Columbia L. Rev. 2259 (1999).

22. Prosecutor v. Krstic, IT-98-33-A, 19 April 2004 (Appeals Judgment), paras. 140-143.

23. See, for example, ICTY Statute, Art. 7(3); ICTR Statute, Art. 6(3); Rome Statute, Art. 28.




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The Extraordinary Chambers



24. See Prosecutor v. Akayesu, ICTR-96-4-T (Trial Judgment), 2 Sept. 1998, paras. 513, 702,
Mettraux, 227-228, notes 97-101 (Tutsis found to be an ethnic group for genocidal purposes).
25. Prosecutor v. Jelisic, IT-95-10-T (Trial Judgment), 14 Dec. 1999, para. 71.
26. Prosecutor v. Bagilishema, ICTR-95-1A-T (Trial Judgment), 7 June 2001, para. 65.
27. See, for example, Mettraux, International Law, 230-232.
28. Hitler himself “prophesied” that the Holocaust would bring about “the annihilation of the
Jewish race in Europe.” See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil,
New York: Penguin Books (1994), 78.
29. See, for example, Prosecutor v. Akayesu, ICTR-96-4-T (Trial Judgment), para. 701 (noting
that “[a]lthough the Prosecutor did not specifically state so in the Indictment, it is obvious, in
the light of the context in which the alleged acts were committed, the testimonies presented and
the Prosecutor’s closing statement, that the genocide was committed against the Tutsi group.”
30. Prosecutor v. Krstic, IT-98-33-T (Trial Judgment), para. 559 (holding that “no national, ethnical,
racial or religious characteristic makes it possible to differentiate the Bosnian Muslims residing in
Srebrenica, at the time of the 1995 offensive, from the other Bosnian Muslims. The only distinctive
criterion would be their geographical location, not a criterion contemplated by the Convention.”).
31. Krstic (Appeal Judgment), paras. 21, 26 et seq.
32. Sikirica, para. 77; Krstic (Appeal Judgment), paras. 12, 16, 21, 37.
33. Schabas writes that the UN Expert Group on Cambodia opined that persecution by the Khmer
Rouge of the Buddhist monkhood might qualify as genocide of a religious group. Similarly, the
Muslim Cham was cited as a potential “group.” Schabas dismisses such persecution, if proven, as
amounting to cultural rather than physical destruction and so not within the concept of genocide.
Schabas, Genocide in International Law, 129.
34. Schabas, Genocide in International Law, 145-46. A “People’s Revolutionary Tribunal” tried Pol
Pot and others for genocide under a much wider definition in 1979 in what was called a “show
trial.” Schabas, 391-92.
35. Schabas, Genocide in International Law, 150.
36. Akayesu, para. 515.
37. See William A. Schabas, “Problems of International Codification—Were the Atrocities in
Cambodia and Kosovo Genocide?” 35 New England Law Review 287 (2001).




96                                                                                       Open Society
                                                                  Challenges




Marrying International and Local
Justice: Practical Challenges
Facing the Khmer Rouge Tribunal
The Extraordinary Chambers will           Supreme Court—which will thus
include both Cambodian and interna-       necessarily include the affirmative
tional personnel. Caitlin Reiger con-     vote of at least one international
siders how this hybrid structure will     judge.2 This mechanism is known as
function.                                 the “supermajority,” a solution that
                                          has become one of the defining—and
In 1999, when the Cambodian
                                          most controversial—elements of the
government and the United Nations
were still deciding on the structure of
a tribunal to try members of the
Khmer Rouge leadership, the notion        The “supermajority” has become one of
of a court combining both national        the defining—and most controversial—
and international judges was being
tried out in Kosovo. Similar “hybrid”     elements of the Extraordinary Chambers.
tribunals would be established in East
Timor in 2000 and Sierra Leone in
2002. In each of these countries,
                                          Extraordinary Chambers in the Courts
international judges formed the
                                          of Cambodia (EC) even before their
majority on the respective court, and
                                          establishment. In addition to the
this was the UN’s preference for
                                          supermajority required for decisions,
Cambodia too. Ultimately, however,
                                          the EC will have two co-prosecutors
the Cambodian government success-
                                          and two co-investigating judges—
fully negotiated a structure in which
                                          comprising in each case one
Cambodian judges are to constitute
                                          Cambodian and one international
the majority in each Tribunal forum.1
                                          person. Each of these offices will be
Cambodian judges will occupy three
                                          supported by both Cambodian and
of the five seats on the Pre-Trial and
                                          international staff. At an administra-
Trial Chambers and four of the seven
                                          tive level, there will be a Cambodian
seats on the Appeals Chamber
                                          director and an international deputy
(Supreme Court).
                                          director.
    Similar compromises were reached
                                              These unique and creative mecha-
on decision-making and non-judicial
                                          nisms attempt to balance the UN’s
personnel. All judicial decisions
                                          concern that international standards
require an increased majority—four
                                          of justice prevail with the Cambodian
of the five votes on the Pre-Trial and
                                          government’s determination that
Trial Chambers, five of seven on the


Justice Initiative                                                           97
 The Extraordinary Chambers



 the tribunal remains an essentially         and running an institution of mixed
 Cambodian institution. They recog-          composition in the form envisaged
 nize the limitations of the national        for the EC presents particular opera-
 judicial system’s technical capacity        tional challenges, especially given the
 to deal with serious human rights           historical and political delicacy of the
 violations committed during a prior         national-international balance that has
 regime, particularly in terms of legal      been struck.4 These challenges should
 expertise or resources. The participa-      not be underestimated. Dedicated
 tion of international personnel is          attention will be needed to ensure that
 intended to ensure that the trials          national and international judges,
                                             prosecutors, lawyers and all other
                                             EC staff are able to function effectively
                                             as a cohesive institution with a unified
        Running an institution of            vision. This is particularly significant
                                             in light of the short—three-year—
     mixed composition presents
                                             timeframe within which the EC is
particular operational challenges.           expected to complete its work.5 Some
                                             operational challenges will be com-
                                             mon across the tribunal as a whole.
                                             Others will be specific to the judges,
 meet international standards of fair-       prosecutors, and defense lawyers.
 ness and due process, and to share
 relevant expertise with Cambodian           General administrative challenges
 judges. In particular, international
                                             The administration will be shared
 personnel, through the medium of
                                             between officers from the Cambodian
 the UN, may bring an appearance
                                             civil service and UN appointees.
 of impartiality and independence
                                             The UN Secretary-General has stated
 that may not be possible for national
                                             that “[t]he Chambers’ unique mode
 judicial officers. These benefits do
                                             of operation and needs call for a large-
 presume, of course, recruitment of
                                             ly integrated staffing structure,” in
 appropriate international personnel.
                                             which most national and international
     At the same time, the court is
                                             staff would work “side by side in
 intended to retain a measure of
                                             the same chain of command.”6 The
 national ownership, credibility, and
                                             exceptions to this would be in those
 relevance for the society that experi-
                                             areas relating to financial control and
 enced the crimes. Where an interna-
                                             the application of UN rules, which
 tionalized court remains part of the
                                             would necessarily be administered
 national court system, as was also
                                             differently. However, the reality is that
 the case in East Timor and Kosovo,
                                             there will not be a single administra-
 there is the further potential of longer
                                             tive authority on such critical issues
 term benefits for the national judicial
                                             as recruitment and personnel man-
 system.3 However, it is important
                                             agement, and much will depend
 to recognize that the reality of creating
                                             in practice on the division of tasks


 98                                                                       Open Society
                                                                       Challenges



and responsibilities between the            the fact that they will not be appointed
Cambodian administrator and the             directly by the UN, the UN Secretary-
UN-appointed deputy administrator.          General has requested that the
Even without this structural complica-      international judges, co-prosecutor
tion, experience in other hybrid            and co-investigating judge be deemed
tribunals has shown that various            to be UN officials for the purposes
challenges are likely to arise at an        of terms and conditions—including
operational level that will require care-   benefits, tax liability, and allowances.11
ful management.                                Additionally, a common source of
                                            resentment in other contexts relates
Terms and conditions                        to access to official court vehicles,
In other tribunals of mixed composi-
tion, notably the Special Panels
for Serious Crimes in East Timor and
the Special Court for Sierra Leone,         Experience in other hybrid tribunals has
the differing level of benefits and         shown that various challenges are likely to
resources available to UN/internation-
al staff (as against national staff) has    arise that will require careful management.
often become a source of contention.7
Aside from a vast disparity in salaries,
international staff are usually provided
                                            which may be of particular resonance
with additional leave benefits, security,
                                            in Cambodia since the proposed loca-
and daily living allowances, and enjoy
                                            tion for the EC is approximately 11
exemptions from national taxation
                                            miles from the center of Phnom Penh.
and import duty requirements.8 The
                                            Access to transport resources, if deter-
Cambodian government has already
                                            mined on the basis of nationality, may
made public reference to the need to
                                            be particularly sensitive.12
develop an “esprit de corps”9 to avoid
polarization regarding conditions of
work and remuneration. Perhaps to           Language and translation
that end, it has already announced that     The proceedings before the EC will
the budget discussions now underway         be conducted in Khmer, English, and
assume Cambodian judges, prosecu-           French and require simultaneous
tors, and other staff will receive half     interpretation.13 It will be essential that
the remuneration of their internation-      interpreters receive adequate training
al counterparts, which would make           in technical legal terminology as
the differential much less than in          well as the fundamental principles of
other tribunals—and considerably            an impartial and fair judicial process,
more than comparable Cambodian              to ensure, for example, that confiden-
judicial or civil service salaries.10       tiality of witness statements and inves-
If met, this dispensation may go some       tigations, together with the presump-
way towards addressing the challenge        tion of innocence of the accused, are
of disparate salaries. Also, despite        preserved during both investigation


Justice Initiative                                                                  99
      The Extraordinary Chambers



      and trial phases. In the context of        Chambers will be decided by four out
      Cambodia, such knowledge should            of five (at Pre-Trial and Trial), or five
      not be assumed as many interpreters        out of seven votes (on Appeal)—i.e.
      and translators may never have experi-     by supermajority. It is clear in the case
      enced a properly functioning judicial      of the Pre-Trial Chamber, constituted
      system themselves.                         to decide disputes between co-investi-
         Language issues will affect the         gators or co-prosecutors, that if no
      interaction between Cambodians and         supermajority is reached, the prosecu-
      international personnel throughout         tion or investigation shall proceed.16
      the EC, not least in the daily commu-      However, in the case of decisions
      nication among staff, unless there is      by the Trial and Supreme Court
                                                 Chambers, no guidance is provided
                                                 as to how to proceed if no supermajor-
                                                 ity is reached, other than that where
       The supermajority system raises           there is no unanimity, the decision of
     issues of how the Cambodian and             the Chamber shall contain the views
international judges will work together.         of the majority and the minority.17
                                                 While the supermajority system raises
                                                 issues of how the Cambodian and
                                                 international judges will work togeth-
      a requirement that both international      er, the mechanism was clearly intend-
      and Cambodian staff have a working         ed to prevent control of decisions by
      knowledge of either English or             Cambodian judges alone, particularly
      French. There is currently no indica-      in relation to final verdicts. If, as envis-
      tion that such knowledge will be a         aged, the bench sometimes splits
      criterion for recruitment. For interna-    along national/international lines
      tional judges, prosecutors, and            without a positive decision, there is
      lawyers, access to translations of docu-   likely to be considerable confusion.18
      mentary evidence from Khmer will be        For example, if no supermajority
      critical. For their Cambodian counter-     decides for either conviction or acquit-
      parts—if they are not fluent in English    tal in a given case, it is unclear
      or French—access to legal materials        whether the next step would be retrial
      such as international jurisprudence        before a different Chamber. As
      will be equally important.14               Human Rights Watch observed in
                                                 2003, such a procedure is unknown
      Judges                                     in Cambodia’s domestic system; the
                                                 dominant Cambodian interpretation
      The supermajority
                                                 might be an effective acquittal.19 This
      mechanism in practice
                                                 mechanism will also affect the dozens
      Both the UN Agreement and the              of pre-trial and interlocutory decisions
      Cambodian domestic law establishing        that the Trial and Supreme Court
      the Extraordinary Chambers (the “EC        Chambers will be required to make
      Law”)15 state that “decisions” of the      prior to final judgment, particularly in


      100                                                                       Open Society
                                                                      Challenges



the context of a new jurisdiction in       between Cambodian and non-
which the parties will seek rulings to     Cambodian judges, it is important that
clarify unfamiliar procedures. Unless      all judges trust in the appointment
the judges are able to reach a common      process of their colleagues. One possi-
understanding quickly on the applica-      ble way to address this challenge
tion of the supermajority mechanism        would be to have all judges develop
in cases of no positive decision, trials   and adopt a code of judicial conduct
may be considerably delayed, with          that applies equally to all.
serious implications for the EC’s              Furthermore, the transparency and
proposed lifespan.                         credibility of the appointment process
                                           will have the potential to either diffuse
Selection and appointment of judges        or exacerbate tensions among those
Due to widespread public criticism         Cambodian legal professionals who
and allegations of political interfer-     are not selected for the tribunal.
ence in the normal operations of           This in turn may affect the extent to
the Cambodian judiciary, the selection     which the EC can positively influence
and appointment of judges may              the domestic judiciary more broadly.
also pose operational challenges if not
conducted in a transparent and merit-      Differences in legal and judicial cultures
based manner.20 With any court it
                                           Bringing together judges from differ-
is essential that there be a collegial
                                           ent national backgrounds raises the
atmosphere among the judges if they
                                           likelihood that their legal cultural
are to efficiently and professionally
                                           backgrounds will also differ. Each
discharge their judicial responsibili-
                                           jurisdiction has its own particularities.
ties. While dissent on legal issues is
                                           The International Criminal Tribunals
a healthy part of the judicial process,
                                           for the former Yugoslavia and
this should still be founded upon a
                                           Rwanda, as well as the mixed courts
basis of mutual and professional
respect and trust. The international       in Sierra Leone, Kosovo and East
judges will be appointed by the            Timor have demonstrated that it takes
Supreme Council of the Magistracy,         time for judges to learn to work
a Cambodian government body, upon          together and accommodate their dif-
nomination by the UN Secretary-            fering experiences and preferences.23
General. The Cambodian judges              This can affect not just the substantive
will be appointed by the Supreme           and procedural law that is applied,
Council of the Magistracy “in accor-       but a wide range of judicial practices
dance with the existing procedures         within chambers that the tribunal
for appointment of judges.”21 There        may need to address.
has been much public speculation,             Probably the most relevant differ-
within Cambodia and outside, about         ence in legal cultures is that between
the appointment process of the             judges from civil law and common law
Cambodian judges.22 In order to            jurisdictions. While the Cambodian
nurture good working relationships         legal system is based on the civil law


Justice Initiative                                                                 101
         The Extraordinary Chambers



         model, there is no requirement that        including the UNTAC Transitional
         the international judges will be nomi-     Provisions relating to the Judiciary,
         nated from civil law jurisdictions         and Criminal Law and Procedure
         alone. As has occurred in other inter-     applicable in Cambodia of 1992 and
         national and mixed courts, judges          the Cambodian Law on Criminal
         from the different systems will be         Procedure of 1993. For both national
         used to varying rules of procedure and     and international judges, of whom
         evidence, and differing approaches to      few if any are likely to have had direct
         trial management and to the conduct        experience trying cases involving
         of proceedings. Once the EC’s applica-     international crimes, familiarization
                                                    with the particular procedural chal-
                                                    lenges of these cases will be valuable,
                                                    as will an exploration of the interna-
  The EC’s model of co-prosecutors and              tional criminal procedural and eviden-
co-investigating judges is unprecedented            tiary rules that have developed in
                                                    response to these challenges.24
       —no other international or hybrid
                                                        The level of support available to
              tribunals use this structure.         judges also forms part of their judicial
                                                    “cultural” behavior and expectations.
                                                    In jurisdictions—including Cambodia
         ble Rules of Procedure and Evidence        —where there is only limited adminis-
         are determined—be they modeled on          trative support available to judges
         the existing Cambodian criminal            in court, judges may have developed
         procedure, a customized special set of     particular ways of operating that
         rules or some combination of both—         may lead to misunderstandings with
         judicial disagreements over interpreta-    international colleagues. For example,
         tion and application may paralyze          in some common law jurisdictions,
         decision-making (particularly, in com-     such as Canada, South Africa, the U.S.
         bination with the supermajority mech-      and Australia, the existence of legally
         anism), and cause delays and appeals.      qualified law clerks or legal officers is
            This particular operational chal-       standard practice. In many European
         lenge could be addressed to some           civil law jurisdictions a similar role is
         extent by providing joint training for     provided by judicial trainees. They
         both international and national judges     provide the judges with confidential
         on the application of the relevant laws.   research assistance and advice, and
         Such training should focus not just        may even assist with drafting of deci-
         on the EC Law and the relevant inter-      sions. However, in other jurisdic-
         national law and jurisprudence.            tions—due to either lack of resources
         The international judges, regardless       or different practices—such participa-
         of whether they are from civil or          tion is entirely unknown and may
         common law backgrounds, will need          initially be perceived as encroachment
         to understand the multiple sources         on the judicial role. Yet in courts exer-
         of currently applicable rules of           cising jurisdiction over international
         Cambodian criminal procedure,              crimes, the usefulness of legal officers

         102                                                                     Open Society
                                                                     Challenges



has been found to be particularly           international judges themselves, given
helpful, given both the specialized         their own differing national practices.
and developing nature of the law               Cambodian judges are likely to
and the vast amount of evidence to          have personal experience of the
be managed, in comparison with              Khmer Rouge period and its after-
ordinary national criminal trials. To       math, and this will inevitably give
this end, provision has been made in        them a different perspective than their
the EC budget for a limited number          international counterparts, and an
of law clerks (both national and inter-     insight into the cases brought before
national) to support the judges.25          them. Individual experiences shape
    Other legal cultural differences        every judge’s outlook, and do not
may include vastly differing styles of
judicial drafting. In civil law jurisdic-
tions, the length and detail contained
                                            Cambodian judges are likely to have
in orders, decisions, and judgments
is often considerably briefer than          personal experience of the Khmer Rouge
in common law jurisdictions. Some           period and thus a different perspective
differences do not necessarily follow
the common law/civil law distinction,       than their international counterparts.
such as between those jurisdictions
where plain language dominates in
judicial drafting as against those          amount to a lack of impartiality.
in which more formal or legalistic          What is important is that no judge pre-
drafting is the norm.26 Another exam-       judges the particular cases that come
ple relates to the judicial practice of     before the EC or be perceived to do so.
deliberation—whether judges are in              However, public perception also
the habit of discussing matters togeth-     plays a role. Some Cambodian judges
er with their colleagues, or coming to      were trained in countries that took
their own conclusions separately            well-known positions vis-à-vis the
before discussion. While these mat-         Khmer Rouge (such as the former
ters may not individually seem signifi-     Soviet Union and Vietnam), and may
cant, cumulatively they comprise a          be perceived within Cambodia as lack-
set of practical challenges judges          ing impartiality as a result (although
may experience, and they can have           a greater danger is likely to be the
the potential to disrupt or delay the       inadequacy of their judicial training).
smooth operation of proceedings.            Furthermore, international judges
The Cambodian judges will have the          too are not immune from negative
advantage of familiarity amongst            public perceptions.27 Therefore the
themselves with their national prac-        critical needs are for both public edu-
tices, but time and patience is likely      cation about genuine issues of judicial
to be required for adjustment in their      impartiality and competence and rig-
relationships with the international        orous screening of all judicial appoint-
judges, as, indeed, it is among the         ments to ensure that there is no basis


Justice Initiative                                                               103
The Extraordinary Chambers



for concerns of impartiality, whatever    evidence to the defense during the
their provenance.                         investigative phase, pre-trial applica-
                                          tions for witness protection, or proce-
Prosecutors and                           dures for partie civile applications.
investigating judges                          Furthermore, and presenting a pos-
                                          sibly greater challenge, is the question
The EC’s model of co-prosecutors and
                                          of whether the mixed structure will
co-investigating judges is unprece-
                                          allow for the development of a coher-
dented—no other international or
                                          ent prosecutorial and investigative
hybrid tribunals tasked with trying
                                          strategy. An important lesson from
similar crimes use this structure.
                                          existing international criminal justice
Neither the UN Agreement nor the
                                          processes is that the widespread
EC Law offer guidance on the roles of
                                          and/or systematic nature of the inter-
these officers other than stating that    national crimes, including for exam-
investigating judges are “responsible     ple the need to examine command
for the conduct of investigations”        structures and the policy behind vari-
and prosecutors are “responsible for      ous specific incidents, warns against
the conduct of prosecutions.”28 Given     approaching individual cases in isola-
that one member of each will be inter-    tion from each other without an over-
national, if these appointments are not   arching strategy. Independent prose-
from civil law jurisdictions that use a   cutorial discretion, which is more
similar mechanism (and not all civil      familiar to common law practitioners
law jurisdictions do) their required      and has become the norm in other
cooperation has the potential to lead     international and hybrid courts, is
to misunderstandings and confusion.       arguably more suited to this specific
The inclusion of a dispute-resolution     task and yet will be unfamiliar to at
mechanism by way of a specially           least the Cambodian prosecutor and
constituted Pre-Trial Chamber—for         investigating judge. For similar rea-
which there is no precedent in            sons, interpreting the limited guid-
other hybrid tribunals—presupposes        ance provided in the Agreement
that the national and international       through the lens of a classic civil
prosecutor or investigating judge         law or inquisitorial-style investigative
may disagree. However, the Pre-Trial      process, where the pre-trial actions
Chamber is only envisaged to rule         of the prosecutor are directed by an
upon disputes as to whether to pro-       investigating judge without specific
ceed in a particular investigation        expertise in international crimes or
or prosecution. It is not intended        analysis of the broader command
to mediate the great many other dif-      structures, is unlikely to succeed
ferences of opinion on daily opera-       in establishing a full picture of the
tional questions that may arise and       Khmer Rouge regime’s crimes.29
are not regulated clearly by existing     It may also prove to be a further point
Cambodian procedure. Possible exam-       of contention between the internation-
ples may include the disclosure of        al and Cambodian actors.


104                                                                   Open Society
                                                                      Challenges



   Another major operational chal-           criminal law among the Cambodian
lenge facing both the international          legal profession will at a minimum
prosecutor and investigating judge is        require international lawyers as advi-
that they will be dependent on the           sors on defense teams. But it is not
Cambodian police force to carry out          clear whether they will have an oppor-
investigations and bring witnesses           tunity to bring that expertise directly
to Phnom Penh to testify. Unlike in          into the courtroom. Similar situations
other hybrid and international juris-        have arisen before the hybrid courts
dictions, there does not appear to be        in both East Timor and Kosovo: the
any provision in the EC Law to ensure        lack of suitably experienced counsel
staff within the prosecutors’ office are     operated to the overall detriment of
responsible for witness security and         those trials.32 Furthermore, unless the
protection during these phases.              Tribunal’s office of administration pro-
Contacting witnesses who may be              vides adequate institutional support
scattered throughout the country and         for the defense, a perception may arise
gathering evidence of mass crimes            that the defense has been denied not
that are almost thirty years old will        only the benefits of international
not be easy tasks and yet they are           expertise, but also the material
essential for the success of the trials.30   resources necessary to do its job.
Aside from the reported problems of             The practical difficulties of creat-
endemic corruption in the national           ing a court that blends national
police force, it is unlikely that there      and international staff, cultures, and
will be national expertise for work of       procedures extend well beyond those
this kind and magnitude.                     outlined here. Yet these operational
                                             challenges are often underestimated
Defense lawyers                              in discussions about the benefits of
Unlike the prosecution and the judici-       combining local and international
ary, no mechanisms are envisaged             justice.33 The EC may yet achieve
mandating nationals and internation-         an international standard of justice
als to work together in the defense—         for Cambodians that is seen and
which might thereby avoid some of            experienced neither as a purely inter-
the practical difficulties likely to be      national imposition nor as controlled
faced by the mixed prosecution and           by domestic political imperatives.
judicial arms. However, there may            However, it is important to be realistic
be substantial risk of compromising          about how the particular mixture
the rights of the accused to a compe-        of international and national ele-
tent defense and equality of arms.           ments is likely to work in practice.
                                             While many of the challenges are
   Although the UN Agreement
                                             not insurmountable, if not acknowl-
makes note of the right of the accused
                                             edged and addressed they have the
to choose their own counsel, current
                                             potential to disrupt the important and
Cambodian law does not allow foreign
                                             difficult task facing the EC in fulfill-
lawyers audience rights in court.31 The
                                             ing its mandate.
lack of experience in international


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Notes
Caitlin Reiger is a senior associate at the International Center for Transitional Justice.

1. For historical and political background to the negotiations, see Craig Etcheson’s article in the
present issue of Justice Initiatives. For further detail on this period see: Thomas Hammarberg,
“Efforts to Establish a Tribunal against Khmer Rouge Leaders: Discussion between the Cambodian
Government and the UN,” paper presented on May 29, 2001, at a seminar in Stockholm organized
by the Swedish Institute of International Affairs and the Swedish Committee for Vietnam, Laos, and
Cambodia, reprinted as a special supplement to the Phnom Penh Post, September 14-27, 2001. See
also Tom Fawthrop and Helen Jarvis, Getting Away with Genocide: Elusive Justice and the Khmer Rouge
Tribunal, Pluto Press (2004), Chapter 7.

2. Article 4, Agreement between the United Nations and the Royal Government of Cambodia
Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of
Democratic Kampuchea, June 6, 2003 (“UN Agreement”).

3. For a discussion of these cases and the expectations of mixed national and international courts,
see Laura A. Dickinson, “The Promise of Hybrid Courts,” (2003) 97 American Journal of
International Law 295.

4. See Craig Etcheson’s article in the present issue of Justice Initiatives.

5. The Secretary-General has assumed that all operations, from the commencement of the work
of the Prosecutor’s Office to finalizing all trials and appeals, will be three years: “Report of the
Secretary-General on Khmer Rouge Trials, October 12, 2004,” UN Doc A/59/432, para 15.

6. Report of the Secretary-General, para. 28.

7. In East Timor this discord even led to early strikes by East Timorese judges and public defenders:
Suzannah Linton, “Rising from the Ashes: the Creation of a Viable Criminal Justice System in
East Timor,” (2001) 25 Melbourne University Law Review 122 at 135. In the Special Court for Sierra
Leone the disparity in benefits was raised with the Registrar by a group of national staff on several
occasions: author’s discussions with Special Court staff in 2004 and 2005.

8. These privileges and immunities are reflected in Articles 19 and 20 of the EC Agreement.

9. Statement of the Cambodian Government Task Force to the States Members of the United
Nations regarding the Draft Agreement on Khmer Rouge Trials, April 17, 2003, annexed to
UN Doc A/57/808, at 6.

10. In November 2002 Cambodian judges’ salaries were increased from just $25 to $300 per
month: Report of the Special Representative of the Secretary-General for Human Rights in Cambodia,
December 18, 2002, UN Doc E/CN.4/2003/114, para. 14. According to Cambodian government
statements reported in the local press, the Cambodian judges are expected to earn $65,000 per
year, half of the salary of their international counterparts: Lee Berthiaume “KR Trial Judges,
Prosecutors to Earn $65,000,” The Cambodia Daily, September 2, 2005.

11. Report of the Secretary-General.

12. At the Special Court for Sierra Leone, national staff were paid an additional transport allowance,
whereas international staff had after-hours access to court vehicles.

13. Report of the Secretary-General, para. 18.

14. Advice received from the Cambodian Government Taskforce indicates that it has begun a project
of translating key international criminal cases for this purpose.

15. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea, with Inclusion
of Amendments as Promulgated on October 27, 2004 (NS/RKM/1004/006) (“EC Law”).

16. UN Agreement, Article 7(4).




106                                                                                          Open Society
                                                                                      Challenges



17. UN Agreement, Article 4(2).

18. Amnesty International has noted that the Report of the Secretary-General of March 31, 2003
and the Agreement itself “indicates that the potential for disagreement between judges, prosecutors
and administrative staff is substantial, with differing opinions forming along ‘Cambodian’ against
‘international’ lines.” Amnesty International’s Position and Concerns Regarding the Proposed “Khmer
Rouge” Tribunal, April 25, 2003, AI INDEX: ASA 23/005/2003. Amnesty International was com-
menting on the Draft Agreement, but the relevant provisions were retained in the final version
adopted.

19. See Human Rights Watch, “Serious Flaws: Why the U.N. General Assembly Should Require
Changes to the Draft Khmer Rouge Tribunal Agreement,” April 3, 2003, 5.

20. For discussion of the problems facing the Cambodian judicial system and the lack of judicial
independence in particular, see Report of the UN Special Representative, paras. 20-27; Amnesty
International, Kingdom of Cambodia: Urgent Need for Judicial Reform, June 19, 2002, AI Index: ASA
23/004/2002; Human Rights Watch, World Report 2004.

21. EC Law, Articles 10-11.

22. See for example the advocacy documents put out by the International Working Group on
the Extraordinary Chambers and Open Society Justice Initiative, “International Standards For
The Nomination Of Judges To The Extraordinary Chambers,” February 2004; Cambodian
Human Rights Action Committee, Press Release “Civil Society Calls for International Standards
for the Khmer Rouge Tribunal,” 9 August 2004. See also Cesare Romano, “Judges and Prosecutors
of Internationalized Criminal Courts,” Romano, Nollkaempe and Kleffner (eds.), Internationalized
Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia, Oxford University Press (2004),
235, 245.

23. See Cassese, 7. For further detailed discussion of this issue see International Center for
Transitional Justice, Hybrid Tribunals – a Comparative Study of East Timor, Sierra Leone and Kosovo,
forthcoming 2006.

24. The UN Secretary-General foresees using a training program planned by UNDP for this
purpose: Report of the Secretary-General, paras. 32-34.

25. Author’s interview with Michelle Lee, Deputy Director of the Office of Administration of
the Extraordinary Chambers in the Courts of Cambodia.

26. Similar issues arose within the Special Court for Sierra Leone.

27. For example, in the Special Court for Sierra Leone motions for disqualification were filed
against two international judges, one of which was partially successful, leading to the disqualifica-
tion of Justice Geoffrey Robertson from sitting on one case due to comments he had made in a
book published prior to his appointment.

28. See Articles 5 and 6 of the UN Agreement, and Articles 16 and 23 of the Amended EC Law.

29. The only other international or hybrid tribunal that has used investigating judges was the
Special Panels for Serious Crimes in East Timor, where their formal role, unlike in the Cambodian
system, was limited to ensuring that the rights of suspects and victims were respected during the
investigative phase, and issuing warrants and pretrial orders. See UNTAET Regulation 2000/30
on the Transitional Rules of Criminal Procedure, as amended by UNTAET Regulation 2001/25,
September 14, 2001, Article 9.

30. On the treatment of victims and witnesses in the Tribunal, see the article by Susana SáCouto
in the present issue of Justice Initiatives.

31. Article 5 of the 1995 Law on the Cambodian Bar.

32. Regarding Kosovo, see OSCE Legal Systems Monitoring System, Kosovo’s War Crimes Trials:
A Review, September 2002, 37; regarding East Timor, see International Center for Transitional
Justice (Varney and Hirst), Justice Abandoned? An Assessment of the Serious Crimes Process in Timor
Leste, June 2005, 20.


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33. See for example Romano, “Judges and Prosecutors of Internationalized Criminal Courts;”
see also the recommendations currently under discussion in relation to a special mixed
national/international chamber for Burundi, contained in Letter Dated March 11, 2005 from the
Secretary-General Addressed to the President of the Security Council (Report of the assessment
 mission on the establishment of an international judicial commission of inquiry for Burundi),
March 11, 2005, UN Doc S/2005




108                                                                                  Open Society
                                                                    Challenges




“No Perfect Justice”: Interviews
with Thun Saray, Son Chhay,
and Ouk Vannath
Thun Saray, President of the               And what about punishing those
Cambodian Human Rights and                 hundreds and thousands within the
Development Association (ADHOC):           Khmer Rouge, apart from the handful
                                           of leaders now to be tried? What
When finally it seemed likely that a       about the many who executed orders
tribunal to try the key leaders of the     and committed murder? Should not
Khmer Rouge would in fact be con-          they too be tried and punished?
structed, a French sociologist friend          My friend is not alone in viewing
asked me what the point was. Why           the whole exercise as a textbook case
only try the Khmer Rouge leaders?          of victor’s justice: justice for the
Why restrict the Court’s scope to          loser alone, the winners not tried,
crimes committed between April 17,         but even rewarded for similar behav-
1975 and January 6, 1979? Why not          ior. Winston Churchill, for example,
also try those involved in the many        ordered the bombing of Dresden
crimes committed in Cambodia before        in 1944 for no reason other than
and after those dates? What about          to demoralize the Germans—to intim-
the mass bombings by the United            idate them. Thousands of innocents
States inside the Cambodian border         died for a military strike that had
from 1969 to 1973 that killed an esti-     no military necessity. Yet far from
mated 600,000 Cambodians in total?         being punished for war crimes,
What about trying Henry Kissinger,         Churchill was viewed as a hero and
who orchestrated those bombings?           still is today. As Dostoevsky put it, if
What about the Vietnamese who took         you are an ordinary person and
control of the government in the peri-     you kill one or two people, you will be
od after the Khmer Rouge left power        punished, but if you are an extraordi-
in 1979, and proceeded to commit           nary person and you kill 10,000, you
mass human rights violations? What         will not.
about the Russians who underwrote              To my friend, I replied there is no
the Vietnamese? What about those           perfect justice. We still live in a world
in the UN, the United States and China     dominated by balance-of-power poli-
who kept the Khmer Rouge nominally         tics. Injustices throughout history
in power through to 1993—these sup-        have rarely been addressed. What
porters of the criminals are themselves    justice was there for the African slaves
accomplices to their crimes, according     brought to the Americas, for example?
to most interpretations of criminal law.   None to date. Progress is step by step.



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If we want justice for the victims            We must try to find a balance between
of human rights violations, the best          justice and peace. This is important,
we can hope for is imperfect justice.         because we can only find justice in
But if we can do something, we should         times of peace. We cannot find justice
do it. We cannot wait for perfect jus-        during times of conflict, of war.
tice. The International Criminal Court
is a big step forward. So are the ad hoc      You have talked [earlier in this interview]
tribunals set up to try those responsi-       about other major problems facing
ble for crimes against humanity in            Cambodia—increasing poverty and unem-
the former Yugoslavia, in Rwanda, and         ployment, landlessness, massive migration
Sierra Leone. These too are imperfect,        to Thailand, and increasing hostility with
but they are important. They are an           your regional neighbors. Are you convinced
                                              that the time, money, and effort the court
attempt to make people equal before
                                              will require are justified, given the many
the law. They are an attempt to achieve
                                              other pressing problems facing the country?
a basic level of justice for victims.
    The leaders of the Khmer Rouge            Poverty reduction is not only econom-
are responsible for an enormous               ic growth. We need to connect growth
amount of deaths more than twenty             with other factors—such as justice and
years ago. There are two excellent            transparency. If we cannot have justice
reasons to try the Khmer Rouge, even          in society, how can we reduce poverty?
if the process is best described as only      The judiciary is a cross-cutting issue.
“relative justice.” The first is to achieve   Transparency, good governance, both
that limited justice for the victims.         rely to some extent on a strong and
Even though we cannot find justice            independent judiciary. And the Khmer
for all the victims of the Khmer Rouge        Rouge tribunal is one important event
years, we can yet find justice for some,      to provide justice and to strengthen
and we can also attempt to ensure             the judicial system in Cambodia. The
that the atrocities of the past will          question is how to link up this tribunal
not happen again. This is the second          to the reform of the judiciary.
reason to support the tribunal: the dis-          The tribunal is also important
suasive effect of the trials. To try these    because it consolidates peace, and will
people tells our present and future           prevent the violation of infrastructure
leaders that they cannot commit               and lives of Cambodians, and the
crimes such as these; that they will not      natural resources of the people.
be allowed to. Even twenty years later,       During the 1960s, Cambodia had
they will be hunted down, they will be        an economy equivalent to that of
caught, they will be tried. We cannot         Thailand or Malaysia. But after wars
try all the people in the region—             over the last 20 or 30 years, we have
we cannot punish all the thousands            fallen far behind both. That’s why
who committed crimes in that period.          I think that combating poverty is not
If we tried everyone, they would fight        achieved by growth alone. Today 79
again, and we would not have peace.           percent of Cambodians live under the



110                                                                         Open Society
                                                                       Challenges



poverty line of $2 per day. In Thailand       the lessons from the tribunal into the
only 30 percent do. Even in Vietnam,          Cambodian judiciary, it is to record it,
only 50 percent do. We have to prevent        to transcribe it, and to have lawyers
conflict and strengthen the judiciary         and judges review this process and
in Cambodia.                                  examine the records, to train them.
                                              So they can learn what a fair trial looks
                                              like. Concern about the process is due
Can the tribunal help
                                              to the fear of political manipulation—
strengthen the judiciary?
                                              that the big bosses will not be pun-
In Cambodia, the judiciary takes
bribes. So when poor people have a
conflict with the rich, and take it to
the courts, they lose the case. If a poor
person loses a case in court, he or she       Even though we cannot find justice
loses everything. The poor remain
poor—and become even poorer. The
                                              for all the victims of the Khmer Rouge
Khmer Rouge tribunal can allow                years, we can yet find justice for some.
Cambodian society, now and in the
future, to make the judiciary more
effective and more fair. The poor will
benefit from this. Not immediately—
but once they start winning cases.            ished. But if the big fish are brought
Now the poor lose 100 percent of              to account, if they are punished, that
cases. In future if it falls to 80 percent,   in itself will demonstrate justice in
50 percent, that is progress. Even            operation. In this country at this time,
though we don’t yet have a clear pro-         that will provide evidence of a fair
gram or strategy to channel the Khmer         trial. Everyone knows who ordered
Rouge tribunal into reforming                 the killing fields. It was not the small
Cambodia’s judiciary, the beneficial          fish, the small Khmer Rouge officers,
effects are already apparent. There           who made the decisions. People may
is a process already underway that            not know who was the killer of their
Cambodian judges and people are               brother or sister, but they know who
learning from, bringing international         ordered the killers. It was the guys
actors into Cambodia, talking about           at the top. We should try all the leaders
what makes for a fair trial.                  of that time with no exceptions—no
    Judges here can learn a lot from          exceptions. If we see these people
the international process—from inter-         brought to justice that will be good.
national judges and their codes of            We may never get to punish those
conduct. People may have the oppor-           culprits above the Khmer Rouge lead-
tunity to watch a fair trial and compare      ers, but if we punish the Khmer
it with the trials they have seen in the      Rouge, that is something. People will
past, and in the future. If there is a        be satisfied with that.
good strategy as to how to introduce


Justice Initiative                                                                  111
         The Extraordinary Chambers



             The court can also be beneficial       Son Chhay, Member of
         if reparations are introduced. Those       Parliament, Sam Rainsy Party:
         tried are unlikely to have funds that
         will match the enormity of their           I remain skeptical about this tribunal.
         crimes. But victims’ damages can           The question is still “why are we doing
         be collected by opening a trust fund       this?” The trial will be so limited, it
         based on voluntary donations. The          cannot bring justice to the people. Will
         money could be used for so many            it uplift the justice system as a whole,
         things—for example, to provide men-        as people are now saying? I never knew
         tal health treatment for survivors         that justice can result from bargaining.
         of the Khmer Rouge period. We could        Every step of the way, the government
         create a treatment center. Victims and     has resisted all appeals to loosen its
                                                    control over the court. And that will
                                                    continue at each next step: in the selec-
                                                    tion of judges and in any disputes
      Judges here can learn a lot from the
                                                    between foreign and local judges.
international process—from international                By restricting the international
                                                    presence in these trials, the govern-
       judges and their codes of conduct.
                                                    ment has tried to guarantee that they
                                                    won’t function. Take investigation,
                                                    for example. It never happens. There
         survivors of those years of terror still   was no investigation into the events
         have nightmares from time to time—         surrounding the killing of the deputy
         even those who fled far away, those        minister of the interior in 1997.1
         living in the United States for exam-      Or into the riots when mobs destroyed
         ple. It is likely that the trials them-    the Thai embassy in January 2003.2
         selves will trigger or unleash pent        Investigators don’t study the evidence.
         up trauma in many people, some             They don’t interview witnesses.
         of whom will be for the first time hear-   They don’t involve themselves deeply
         ing the truth about experiences they       in the situation.
         themselves witnessed, hearing events           The first criterion for a good court
         related that they remember but have        is good judges. And for good judges
         never spoken about. Cambodia does          we need good selection criteria.
         not have the resources to deal with        So far there is little cause for hope.
         the possible outpouring of grief.          For example, I have seen the list of
         A reparations fund could help. But         29 judges that I understand are
         sometimes the fact of trial and            under consideration for nomination
         punishment of the perpetrators of          by Cambodia. Some of these are
         crimes—can itself satisfy the sense        known to have been involved in cor-
         that “my brother died” or “my father       ruption. Others are barely out of high
         was tortured.” Sometimes the spirit        school—they are in their mid to late
         is satisfied by the fact of justice.       twenties, early thirties. They have
                                                    degrees from Kazakhstan, Russia,


         112                                                                     Open Society
                                                                        Challenges



Vietnam—countries not known for            Vietnamese authorities—individuals
judicial excellence.                       active then who are in power today—
    It is not the case that the simple     have much to fear from the witness
fact of working with foreigners will       box. The government is in constant
lead to improvements among judicial        contact with the authorities in China
actors. There have been numerous           and does not want to offend them.
examples in the past of foreigners
working with Cambodians, such as the       What do you see as the
foreign experts brought in to help pre-    main purpose of the court?
serve Cambodian forests. What hap-
pens is either the foreigners are cor-     Cambodians want to know why the
rupted or they are blocked from doing      Khmer Rouge killed their own people.
their job. Today, the forests are disap-   We will be fortunate if that is what
pearing even faster than before.
    And a lot depends on the kinds
of environment the judges have
practiced in. If they have experience
                                           There is a real concern that some of the
of abuse and intimidation—and many         main perpetrators might be acquitted due to
Cambodian judges do—they are               lack of evidence. If this happens, Cambodians
unlikely to have developed independ-
ent ways of thinking and working.          will lose faith in the possibility of justice.
    The government will not let the
trials go too far. Some members
of the government themselves were          the Court achieves. Will the trial gen-
in the Khmer Rouge, generally in           erate guilt among the actual killers—
minor roles, as is well known (look at     those lower than the top tier? It seems
the files of DC-CAM or the research        unlikely. There are so many people
carried out by Steve Heder). The trial     free in Cambodia today with blood
might lead to some witnesses impli-        on their hands—people who were
cating a number of them. Ta Mok,           district commanders and oversaw
a leading Commander in the Khmer           the deaths of hundreds, who feel
Rouge army knows everything about          no shame today. Will the trial lead
everybody involved with the Khmer          to public apologies? It is hard to say.
Rouge. If tried, he could implicate        It is not clear what the government
a lot of people. Take Mr. Chea Sim,        sees as the court’s purpose.
for example, the current speaker of the        The national assembly was not
senate. He was a district chief under      consulted about the tribunal. We were
the Khmer Rouge at a time when             not officially involved in the drafting
thousands of people were killed in his     of the Law [on the Establishment
district. Their skeletons were found.      of the Extraordinary Chambers for
There has never been an investigation.     Prosecution under Cambodian Law of
Why not? Also the Chinese and              Crimes Committed during the Period


Justice Initiative                                                              113
The Extraordinary Chambers



of Democratic Kampuchea]. Nor was            perpetrators set free. This is my fear
the parliament involved in negotiating       if the court does not convict the top
the Agreement with the UN that led           leaders. It will be just another punish-
to the amendment of the Law and              ment. It will bring back all these terri-
decided the structure of the Court.          ble memories, all that bad blood.
People have been too quick to reach              I hope instead that the sacrifice we
the conclusion that there will be a          are making will bring justice. If not,
free debate, without fear. Or that the       what will it mean to go through the
hearings will be broadcast. Not even         horror one more time? I hope every
parliament is broadcast today.               person involved in the trial will take
    Most of those of us who fought           this into account. If you are not seri-
for international standards in the           ous, don’t play with us.
Court have resigned ourselves to the
present court. Some are pessimistic,
[saying] “forget about justice, a fair
                                             Ouk Vandeth, Legal Aid Cambodia:
trial, international standards: let’s
just get it over with and out of the         I should say first of all that I am happy
way.” The decisive question is rather        for the establishment of the EC. If the
how much longer the government               tribunal is just, we will have much to
can delay the Court. Above all, most         learn from it. But if the EC is not just
of us just want the government to            and fails to meet the people’s impera-
take its hands off the Court.                tive of justice, we will not trust it.
                                             In Cambodia, people do not trust
If the Court goes ahead, as seems
                                             the existing court system. They believe
                                             the system is both corrupt and unjust.
likely, how will you approach it?
                                             They think the courts generally serve
My opposition to the court is well           the government. So we are happy that
known. When it was clear that the            the EC will be set up to meet interna-
court would not reach international          tional standards. This will allow us
standards I tried to block it. That effort   to compare an international tribunal
failed and it is too late to change          in operation within the Cambodian
the court now. So I wish it all the best.    system—and so see the differences.
I only hope it goes well. I hope we can      We expect an international tribunal
be satisfied enough. Enough that we          to be better than the Cambodian
can go to bed at night and fall asleep.      courts, both in its procedures and
    Otherwise the court will just drag       decision making.
up all our horror again, and we                  The first issue is the selection
will have to live through it all again.      of judges and prosecutors for the tri-
It will be like a rape victim who has to     bunal. We will soon be able to see
go through the indignity of describing       whether the judges and prosecutors
in detail to a room full of strangers        are selected in a transparent manner.
how she has been violated. To undergo            Second, we can see whether the
that humiliation and then to see the         decisions of the EC will be transparent


114                                                                       Open Society
                                                                      Challenges



or not. We will be in a position             circumstantial evidence left. Other
to compare the differences in how            evidence has disappeared. Witnesses
decisions are reached by international       have died. So the question is how
and by national judges. Will decisions       to gather evidence and make a case?
be made according to the law? Or             There is a real concern that some
according to the judges’ own will? Or        of the main perpetrators might be
in response to a threat from outside?        acquitted due to lack of evidence.
    It will also be helpful to observe the   If this happens, Cambodians will lose
trial process—to see how evidence            faith in the possibility of justice.
is collected—because all of this hap-            Another problem is that the
pened 30 years ago. We will see the          government of Cambodia is not will-
process of collection and admission          ing to have the EC become a reality.
of evidence today. This may also bene-       First they said they did not have
fit those working in law enforce-            enough money to cover more than
ment—not just the police involved            a small part of the Court’s costs.
directly in the EC, compiling evidence       But then when the international
and conducting investigations, but law       community says it can cover the rest,
enforcement as a whole throughout            the government claims it cannot even
the country.                                 afford its share. Negotiations have
                                             dragged on for years. The issue of
    Nevertheless, we have many con-
                                             procedures for example—the govern-
cerns.
                                             ment is unlikely to accept our recom-
    We worry that the EC does not have       mendations, but it may use the
its own procedures—it will rely on           process to further delay things. And
existing Cambodian procedures—               while the government delays, witness-
which are grounded in civil law rather       es and perpetrators are getting old
than common law norms. The ques-             and dying. The government has also
tion is in part whether international        moved the venue from a central
judges with a background in common           independent location in Phnom Penh,
law procedures will be comfortable           near the Royal Palace, to a military
with this system. But also, more             venue about 30 km outside the city.
importantly, Cambodian procedures            There will be fewer witnesses to testify
are full of gaps. There are no rules and     as a result—some of them won’t enter
procedures available for the EC at this      a government building.
time. We and other civil society groups          The imbalance between Cambodian
have worked to introduce a basic set         and international judges in the court is
of rules and procedures—but we have          a matter for concern. We are worried
no expectation that these will be            that national investigators and the
accepted by the government.                  Khmer personnel on the Tribunal are
    Another challenge is how the court       unlikely to behave in an independent
will deal with the problem of time.          manner. There are no formal criteria
These crimes happened more than              about the selection of judges. Behind
20 years ago. Today there is only            the scenes, Cambodian judges may be


Justice Initiative                                                                115
The Extraordinary Chambers



following political direction. We have             killing fields. But evidence can disap-
confidence in the international judges             pear, if for example, a court official is
but little experience on which to trust            related to the perpetrator in any way.
Cambodian judges.                                     Most people today have mixed feel-
    Finally, investigations are likely to          ings about the court. They lack educa-
be problematic. There is no tradition              tion and are not well informed.
of investigation in Cambodia. Under
                                                   The government has not made a
normal conditions, achieving prosecu-
                                                   serious effort to inform people—and
tions has never been a problem where
                                                   they have no interest in doing so.
the accused have no influence.
Investigating judges do not have the               The opposition asks why the govern-
money to conduct thorough investiga-               ment has not fundraised for the court.
tions, so they rely on police testimony.               It is not too late for the government
The police habitually use unlawful                 to increase public trust in this process.
interrogation techniques. There are no             First we would like to see that the
clear rules governing the use of evi-              selection of Cambodian judges and
dence—any evidence can be presented                prosecutors is more transparent and
in court. And neither investigators nor            accountable. Second, the government
police are willing to prosecute friends            should ensure there is enough
or relatives of ranking government
                                                   substantive law before the court is
officials, regardless of the crime. So
                                                   established. We want to see the will of
how will these crimes be investigated?
                                                   the government to make the process
    Under Cambodian law there are
                                                   work. We want to see that the govern-
no procedures to protect victims and
                                                   ment is committed and serious before
witnesses. Potential witnesses are
often afraid to testify and so are                 starting the process. If the EC func-
frustrated in their wish to participate.           tions according to basic standards of
They prefer to say they know nothing               justice, that can lift our faith in the
and stay uninvolved. There is docu-                court system as a whole. If the EC fails,
mentary evidence and the skulls and                we will lose faith in courts. “Like father
other material evidence from the                   like son.”


Notes
Interviews conducted by Stephen Humphreys, former senior officer, communications for the Open
Society Justice Initiative.
1. Deputy Minister of the Interior Ho Sok was killed during a 1997 coup. In 1998 a team was
established to investigate his death, but no report was ever published.
2. In early January 2003, a Cambodian newspaper reported a Thai actress as claiming that
Angkor Wat belonged to Thailand. In retaliation for her comment, Prime Minister Hun Sen
asked Cambodian television stations not to broadcast any Thai movies. This was subsequently
followed by riots against Thai businesses and the Thai Embassy in Phnom Penh, which were
never investigated.




116                                                                                 Open Society
                                                                   Challenges




Outreach in Cambodia:
An Opportunity Too Good to Miss
Helping ordinary Cambodians to             Khmer Rouge, only had the authority
understand the workings of the EC          to look at crimes committed between
is one of the tribunal’s many chal-        April 17, 1975 and January 6, 1979—
lenges. Tracey Gurd recommends an          and that all crimes falling outside
outreach strategy.                         those dates, however appalling, would
The Village Chief 1 absentmindedly         also fall outside the court’s purview.
swatted a fly from his face as he          Nor was it clear if he realized that
recounted his torments. It was the         his specific abuses were unlikely to
rainy season in Cambodia and we sat,       be prosecuted. Making sure that he
cross-legged, on the wooden floor          understands, and engages with, these
boards in his home. His eyes lowered       issues needs to be priority for future
as he described life under the Khmer       outreach programs set up by the EC
Rouge in the 1970s. “I was put in          and civil society. Apart from anything
prison—actually it was more like a         else, the Chief needs to know what
toilet, like in S-212—where they put       to expect from the trial process.
me in shackles tied to an iron bar.”           ‘Outreach’ for international and
After a week, his captors released one     hybrid tribunals is “aimed at ensuring
leg and fed him porridge in a coconut      accurate and reliable information is
shell. It was then, in the prison, that    disseminated as widely as possible
the humiliation and the ill-treatment      to as many target groups as possible,
overwhelmed him. At that point, he         in a way designed to maximize
said, he started to cry. “It wasn’t even   participation and understanding.”4
rice in a bowl,” he explained.             The dangers of failing to implement
    His experience occurred in 1972        early and effective outreach strategies
in Kampong Thom province, over             are striking. Other courts set up
which the Khmer Rouge had effective        to deal with international crimes—
control years before it had extended its   including the International Criminal
grip over the entire country. This         Tribunal for Rwanda (ICTR), the
Village Chief was again victimized by      International Criminal Tribunal for
the Khmer Rouge after Phnom Penh           the former Yugoslavia (ICTY) and the
fell on April 17, 1975. He wants to        International Criminal Court (ICC)—
see the Khmer Rouge leaders tried.         have each faced serious problems
Yet, as we talked to him, it was not       precisely because they paid too little
clear whether he knew that the             attention to early outreach activities.
Extraordinary Chambers in the Courts       The ICC and the ICTY faced misinfor-
of Cambodia (EC),3 set up to deal          mation campaigns perpetuated by hos-
with the atrocities committed by the       tile opponents. The ICTR’s impact on

Justice Initiative                                                             117
          The Extraordinary Chambers



          the local population remains limited.      hybrid court can contribute to national
          Not much has changed since local           reconciliation in post-war societies.6
          Rwandans, surveyed eight years into        Yet the experience of other tribunals
          the Tribunal’s existence, indicated        demonstrates that a successful out-
          they had little or no knowledge about      reach effort provides a greater oppor-
          the court’s mandate and operations.        tunity for a national dialogue to be cre-
          Yet the Special Court for Sierra Leone     ated about issues of accountability,
          (SCSL) has been applauded as more          even if the court itself cannot be seen
          effective than others, thanks to the way   as a sole vehicle through which recon-
                                                     ciliation can be achieved.
                                                         This article explores the outreach
                                                     pitfalls encountered by international
Cambodians need to know what they can                and hybrid courts, and makes recom-
                                                     mendations for the Extraordinary
realistically expect from the trial process.         Chambers and civil society. Hallmarks
                                                     of a successful outreach effort
                                                     will include a multifaceted approach
                                                     which is tailored to suit the audience
          it engaged the local population. It
                                                     to whom the information is directed.7
          entered into a sustained dialogue with
          local people about the Court’s work        It should also contain “enough flexibil-
          early in its lifespan. This approach       ity to be able to respond to the needs
          risked criticism of the Court, but judg-   of different groups within society [and]
          ing by the accolades the SCSL has          it should be devised to develop in par-
          received, the advantages of a participa-   allel with the Court.”8 In short, imple-
          tory approach to outreach in which the     menters of outreach programs need to
          population feels a sense of ownership      talk with—and more importantly lis-
          over the Court’s work are worth the        ten to—people like the Village Chief.
          gamble.                                    Local information needs will change
             The UN Secretary General has            over time as the trials progress, and
          identified outreach as an “integral        with them, so might people’s percep-
          part” of the Extraordinary Chambers’       tions of the Extraordinary Chambers.
          work. He sees it as a means of meeting
          the broader expectations of the            Outreach in other international
          Cambodian government and interna-          and hybrid tribunals
          tional community that the EC’s opera-
                                                     The two international tribunals set
          tions “will contribute substantially to
                                                     up in the early-mid 1990s—the ICTY
          national reconciliation in Cambodia.”5
                                                     and the ICTR—demonstrate the dan-
          This is an ambitious task for any out-
                                                     gers of inadequate attention to early
          reach program, and some scholars
                                                     outreach efforts. Though the outreach
          have questioned more generally the
                                                     programs in each Tribunal have
          extent to which any international or
                                                     improved in recent years, both provide



          118                                                                     Open Society
                                                                     Challenges



cautionary tales of allowing misinfor-      Albanian using print and CD-Roms,
mation and negative stereotypes to          as well as posting them on the inter-
fester unchallenged.                        net.10 To address damaging negative
   The ICTY set up an outreach              perceptions of the Tribunal, the
program six years after the Tribunal        Outreach Program started to engage
was established. By that time, negative     with civil society organizations in
images of the court in former               1999—the same year as grassroots
Yugoslavian communities were rife           NGOs reported that they did not know
and outreach needs were enormous.           how to access basic information about
As the Tribunal itself pointed out in its
1999 Annual Report to the Security
Council:

   The Tribunal is viewed negatively        The dangers of failing to implement early
   by large segments of the popula-         and effective outreach strategies are striking.
   tion of the former Yugoslavia.
   Its work is frequently politicized
   and used for propaganda purpos-
   es by its opponents, who portray         the Tribunal.11 It brought ICTY judges
   the Tribunal as persecuting one          to the region to meet with fellow legal
   or other ethnic groups and mis-          professionals and to discuss the issues
   treating persons detained under          faced by the Tribunal. Individuals and
   its authority. Throughout the            groups from the region traveled to The
   region, the Tribunal is often            Hague to meet with the court staff and
   viewed as remote and discon-             watch the court in action.12 In 2004,
   nected from the population and           the Tribunal started holding commu-
   that there is little information         nity events in areas most affected by
   available about it. Such views are       the crimes prosecuted by the ICTY.
   exploited by authorities that do         In May 2004, ICTY investigators,
   not recognize or co-operate with         prosecutors and court staff directly
   the Tribunal, thereby damaging           involved in cases relevant to the north-
   efforts to foster reconciliation         ern Bosnian town of Brcko met with
   and impeding the work of the             local leaders and victims’ associations
   Office of the Prosecutor. This is        to “provide a comprehensive and can-
   particularly detrimental to the          did first-hand review of the investiga-
   success of the Tribunal.9                tion process, as well as the subsequent
                                            indictment and prosecution of per-
   In response to this, the ICTY set up     sons most responsible for crimes.”13
outreach offices in Sarejevo, Zagreb,       These are welcome developments, but
Pristina and Belgrade. It published         took longer than a decade to take
and distributed key court documents         shape. This is too long for victimized
(including indictments, judgments,          local populations to remain removed
rules of procedure, press releases)         from the workings of the Tribunal.
in Bosnian/Croatian/Serbian and in


Justice Initiative                                                               119
             The Extraordinary Chambers



                 Yet as Weinstein and Fletcher have     further chastised the Tribunal for
             pointed out, the fact that the ICTY        devoting few resources to outreach,
             struggled to set up appropriate out-       noting that the resources it did devote,
             reach mechanisms is not surprising         such as the establishment in 2002
             given the lack of previous examples.14     of an outreach center in Kigali to
             Still, as the Tribunal continues to con-   disseminate information about the tri-
             front negative images in the victim-       als, were largely ineffective. “Attractive
             ized former Yugoslavian communi-           to a tiny part of the urban elite, the
             ties, the question remains: would the      center offers little to the majority
             damage to the Tribunal have been less      of Rwandans, who are illiterate and
             if the outreach effort had been more       live in rural areas.”17
             pro-active from the start?                     The fact that the Tribunal left much
                                                        of the outreach work to civil society
                                                        organizations, such as Internews,
                                                        (an American-based organization
A participatory approach to outreach in which
                                                        which produced regular newsreels
the population feels a sense of ownership               from the ICTR trials and traveled to
over the court’s work is worth the gamble.              the countryside to show them in local
                                                        town halls and football fields),18 also
                                                        raised the ire of Longman and Des
                                                        Forges.19 Yet the Tribunal has made
                 The same question continues to         some active efforts of its own to
             be asked about the ICTR. Rwanda            inform and engage the population.
             experts Alison Des Forges and              In 1998, the court established a Radio
             Timothy Longman have criticized            Rwanda seat at the ICTR, enabling
             the performance of the Tribunal’s          broadcast of the proceedings and
             Outreach Program. In 2004 they             judgments from Arusha back into
             argued that the “Arusha Tribunal has       Rwanda.20 Rwandan journalists are
             remained detached from Rwandan             regularly brought to the Tribunal to
             society, focusing more on legal            report on trial progress and in 1998 a
             processes and contributions to inter-      website was set up as an information
             national law than on its potential         dissemination tool.21 Meanwhile,active
             impact within Rwanda.”15 Their             outreach by court officials started off
             assessment was, in part, based on          well, albeit late. After the court deliv-
             Longman’s study undertaken in 2002,
                                                        ered its first decision in 1998,22 con-
             in which his research team inter-
                                                        victing Taba mayor Jean-Paul Akayesu
             viewed more than 2,000 Rwandans
                                                        of genocide and crimes against
             on their attitudes and understanding
                                                        humanity, the ICTR’s then lead prose-
             of the ICTR, set up eight years earlier.
                                                        cutor, Pierre Prosper, traveled to Taba
             He found that 87.2 percent of respon-
                                                        to talk with local residents about the
             dents said they were either not well
                                                        judgment.23 This type of effort does
             informed, or not informed at all about
                                                        not appear to have been regularly
             the ICTR.16 Longman and Des Forges
                                                        repeated.


              120                                                                     Open Society
                                                                     Challenges



   Despite these efforts, many com-           to an otherwise abstract and
mentators agree the Tribunal’s out-           intimidating institution. The
reach has failed.24 Last year, scholar        engagement approach moves
Victor Peskin wrote of the ICTR’s             beyond public relations and infor-
outreach efforts: “Despite some               mation dissemination toward
progress with limited resources, the          contact and dialogue with
Tribunal’s outreach efforts have been         Rwandans about the Tribunal’s
sorely lacking, with the result that          shortcomings as well as achieve-
most Rwandans still know little if            ments.27
anything about the trials.”25
                                               Peskin draws on the SCSL for
   Peskin argues that the ICTR has          inspiration. He notes that the Special
pursued the wrong type of outreach          Court, set up in 2002 in Sierra Leone’s
strategy. By relying too much on            capital city, Freetown, has ensured
a “more arm’s-length transparency           that its outreach efforts responded to
model”—a model he describes as              information needs of rural people.28
dominated by traditional information        Indeed, the SCSL outreach program
dissemination activities, such as           (the strategy for which is firmly rooted
distributing leaflets, facilitating media   in the engagement model), has been
access to the trials, and translating       applauded by other major internation-
judgments into local languages—the          al onlookers. Human Rights Watch,
ICTR has missed an opportunity              for example, praised the Court in
to actively engage the population, as       October 2005 for developing “one
well as the local Rwandan judiciary, so     of the most successful Outreach
that the Tribunal could have a “direct      Programs of any international or
and lasting impact on the rule of law       hybrid court to date” which “may be
in Rwanda.”26 According to Peskin,          considered a model for other such
the Tribunal should have made greater       courts.”29 Despite being hampered
use of the “engagement model” of out-       by lack of funding in its early years,
reach, in which the Tribunal moves          the Special Court has tried to make
beyond information dissemination            the most of its limited resources:
activities and frequently interacts with    it hired a respected Sierra Leonean
the local population to create dialogue     national with a grassroots NGO back-
about the Tribunal’s work. It would         ground to head its outreach team; it
also actively work with the local judici-   brought high level Court personnel—
ary and other legal professionals           including the Registrar, the Prosecutor
to enhance legal capacity. According        and the Principal Defender—to the
to Peskin:                                  countryside to participate in town hall
                                            meetings, community gatherings and
   Engagement is key to bringing            school lessons with the local popula-
   the reality of the Tribunal closer to    tion (which extended internationally
   the country because interaction          to Liberia in 2004); it has held regular
   between Tribunal personnel and           seminars and conferences with
   Rwandans gives a human face              academics, students and victims; it


Justice Initiative                                                                 121
      The Extraordinary Chambers



      produced television shows, distributed    blocked ICC investigators from enter-
      information booklets, organized radio     ing the war-torn region.33 In northern
      call-in shows and participated in radio   Uganda, community leaders did not
      information panels; and it engaged        see ICC efforts as complementary to
      specific groups—including the mili-       local ones, questioning whether ICC
      tary, the police, the local judiciary,    investigations threatened Uganda’s
      prison officers and religious leaders—    fragile peace process. They argued that
      with an outreach strategy targeted to     the Court’s investigations should stop
      each group’s particular information       and local justice processes should
      needs.30 Notably, its work included an    be given a chance to work.34 In both
      outreach strategy for the disabled,       cases, the ICC’s outreach response has
      which, among other things, involved       been disappointing. Human Rights
      the production of more than 300 court     Watch noted in November 2005 that
                                                “[i]n Sudan, the news of the ICC refer-
                                                ral generated a great deal of hope
        In the “engagement model” of            and expectations among civil society
  outreach, the Tribunal moves beyond           groups in Darfur, but the lack of
                                                outreach since then has left many
   information dissemination activities         victims feeling disillusioned about
and interacts with the local population.        the prospects for justice.”35 In Uganda,
                                                the ICC has made more of an effort.
                                                In 2005, it held a workshop for local
                                                council delegations, seminars for local
      documents in Braille.31 This project      judicial authorities, and information
      was undertaken with a local partner,      meetings for lawyers and journalists.
      the Blind Youth Movement, as one of       While these efforts mark an important
      a series of efforts the Court made        start, as Human Rights Watch notes
      to engage NGOs with grassroots net-       again, “they have not been enough to
      works in the outreach process.            provide basic knowledge to the affect-
         Other courts, particularly the ICC,    ed communities about the ICC.”36
      would do well to draw on this exam-       The fact that the efforts are directed
      ple—at least where it can. Just in the    towards the educated, the elite and
      past year, the ICC—which officially       community leaders, means that the
      came into existence in July 2002—has      majority of the local population is not
      been plagued by criticisms in at least    being directly and meaningfully
      two of the countries in which it works.   engaged by the ICC. Much more still
      In Sudan, “tens of thousands” of pro-     needs to be done, in both Darfur and
      testers hit the streets of Khartoum       Uganda, if the Court’s outreach efforts
      in a government-backed demonstra-         are to be effective.
      tion after news emerged of the referral
                                                    The Extraordinary Chambers
      of the Darfur situation to the ICC
                                                should also use the Special Court for
      by the UN Security Council.32 The
                                                Sierra Leone’s Outreach Program as a
      Sudanese government has since
                                                model, and avoid the pitfalls encoun-


       122                                                                  Open Society
                                                                    Challenges



tered by the other tribunals. This can      ture and aims of the EC. This film is
help to ensure that people like the         currently being shown in pagodas and
Village Chief from Kampong Thom             other communal spaces around the
understands and engages with its            country. In 2005, the Open Society
operations and mandate.                     Justice Initiative recruited a research
                                            team (comprised of one international
Outreach in Cambodia:                       law graduate, a local law student and
                                            a local anthropologist) to analyze
three recommendations
                                            outreach needs in rural Cambodia.
In Cambodia, outreach efforts are           Findings will be used to develop
already underway. The Khmer Rouge           a specialized outreach program, to
Trial Task Force (the government body       be undertaken in collaboration with
designated to take the lead in prepar-      a local NGO, in 2006.
ing for the trials) has produced an
information booklet which it has start-
ed to distribute throughout the coun-
try.37 In the coming year, high-level       The Extraordinary Chambers should use
Task Force officials—who are also
                                            the Special Court for Sierra Leone’s
high-level Cambodian government
officials and EC personnel—will make        outreach program as a model.
visits to the countryside in an effort to
engage the rural community with the
EC. Meanwhile, civil society has been
                                                This is an impressive start. But
gearing up with its own outreach
                                            more needs to be done to ensure that
efforts. DC-Cam, an independent
                                            outreach in Cambodia is successful.
institution set up initially for the col-
                                            Given the experiences of the other
lection of documents relating to
                                            tribunals, three major recommenda-
Khmer Rouge atrocities, for example,
                                            tions seem particularly relevant for
has sent 200 students into the coun-
                                            the EC and civil society.
tryside to spread information about
the trials.38 The Khmer Institute for           Start Early: The EC needs to start
Democracy (KID) has undertaken the          an Outreach Program as a matter of
most recent survey of local                 urgency. Early efforts between NGOs
people’s attitudes towards the Khmer        themselves, and between NGOs and
Rouge Tribunal.39 Although the survey       the Court, need to be coordinated to
itself recognizes its own methodologi-      make sure all segments of the
cal flaws,40 it still contains some         Cambodian community are reached.
significant insights which can provide      The ICC, the ICTY and the ICTR’s
a basis for future projects, both by
                                            experiences all point to the dangers of
KID and other institutions. KID has
                                            failing to address outreach early,
also undertaken a unique outreach
initiative, developing a film which         thoughtfully and in a coordinated way.
features a famous Cambodian folk-             Employ an ‘Engagement Model’ of
singer whose songs explain the struc-       Outreach: The EC and civil society


Justice Initiative                                                              123
      The Extraordinary Chambers



      should aim to move beyond a ‘trans-      respected before they are tapped
      parency model’ of outreach aimed         into. Misunderstanding them—
      simply at information dissemination.     or failing to recognize the disrup-
      The EC needs to engage the local         tive impact that an outside entity
      population in a regular, meaningful      could have on community struc-
                                               tures and the information flows
      dialogue about the Court and its
                                               they facilitate—could undermine
      proceedings. This means:
                                               harmony within communities.
                                               This in turn could diminish
                                               the effectiveness of any local
                                               discussion generated about the
            Tools which do not rely on         Extraordinary Chambers.
people’s ability to read should be inte-       Making regular and repeated trips
    grated into any outreach strategy.         to the countryside to promote a
                                               dialogue with rural communities.
                                               For the EC, this should be done,
                                               as currently planned by the
        Identifying and engaging grassroots
                                               Khmer Rouge Trial Task Force,
        networks with links to local commu-
                                               with high-level court officials to
        nities. The ICTY failed to do this
                                               demonstrate (as the SCSL did)
        at an early stage of the Tribunal’s
        operations and had to start from       the Court’s seriousness in mak-
        scratch six years into its lifespan.   ing the process meaningful for
        The EC cannot afford to do the         locals. For civil society, NGOs
        same. It should look toward the        should meet regularly to divvy up
        SCSL’s example, which began            tasks to avoid overlap and to fill
        identifying, and working with,         outreach gaps (both geographic
        grassroots groups relatively early     and demographic). Follow up
        in its operations, greatly increas-    outreach activities are crucial.
        ing its reach across the country.      The examples provided by the
        Yet in doing so, the EC must           ICTY in Brcko, and the ICTR in
        understand how existing com-           Taba, where court officials trav-
        munity structures and grassroots       eled to an area in which atrocities
        networks operate, and how they         prosecuted by the court actually
        link with the community to             took place and explained the out-
        which they belong. The system          comes and processes of the trial,
        of hierarchy within Cambodia,          are sound precedents. These
        particularly in rural areas, is well   efforts could be further enhanced
        settled. If an engagement strate-      in Cambodia if the outreach
        gy is to be successful, these struc-   program took steps throughout
        tures and networks will need to        trials to visit the communities
        be researched, understood and          affected by crimes and provide
                                               updates on developments.



      124                                                                Open Society
                                                                      Challenges



   Using relevant, targeted materials          ble to these communities are
   and strategies that respond to              needed to help facilitate their
   the particular information needs            engagement with the court.
   of the targeted community. The
                                               Engaging with local legal profes-
   local population in Cambodia is
                                               sionals to strengthen the national
   largely rural (approximately 84
                                               justice system. The EC Outreach
   percent of Cambodians live out-
                                               Program should ensure that local
   side the main cities)41 and pover-          and international judges and
   ty-stricken,42 and levels of func-
   tional illiteracy in the provinces
   are high.43 According to a recent
   UNDP study analyzing access to              The engagement model of outreach is
   Cambodia’s justice system, most
   people outside Phnom Penh have              likely to be more effective in Cambodia
   had little or no experience with            than the transparency model.
   the formal court-based justice
   system.44 This means that out-
   reach tools which do not rely               legal professionals, both within
   on people’s ability to read (films,         the Extraordinary Chambers
   for example, or flip charts)                and outside, work effectively
   should be integrated into any               together and learn from each
   outreach strategy. Efforts engag-           other. International staff will
   ing rural communities should                bring different experiences and
   not assume knowledge. Even                  knowledge to the Chambers,
   basic concepts, like information            which could be relevant for local
   about what a court is, should               judges and legal professionals.
   be explained fully. Room needs              Working side by side, the interac-
   to be provided for people to freely         tions of the two sets of profes-
   engage with these, and more                 sionals may have a lasting and
   complex, ideas.                             positive impact on the national
   Developing a culturally- and lin-           court system. This is particularly
   guistically- sensitive policy for affect-   likely if international staff recog-
   ed minority groups. In Cambodia,            nize they too have much to learn
   ethnic and religious minorities             from their Cambodian counter-
   were often singled out for abuse.           parts about local laws, customs
   Outreach strategies should                  and culture. Experiences in other
   incorporate specifically targeted           countries show that this two-way
   efforts for these groups. This              interaction is not always priori-
   may mean adopting culturally                tized, with detrimental results.
   sensitive approaches, including             In Bosnia, for example, judges
   the use of languages other than             and other legal professionals
   Khmer. Interpreters and materi-             surveyed about their interactions
   als that are relevant and accessi-          with ICTY staff indicated


Justice Initiative                                                                    125
The Extraordinary Chambers



   that the way in which interna-                    was assertive in fighting for funds and
   tional staff treated Bosnian pro-                 other resources for that Court’s out-
   fessionals was “condescending,                    reach. High level officials in the
   ignorant, and disrespectful.”45                   Extraordinary Chambers will need to
   Internationals in Cambodia                        do the same. Similarly, civil society
   should not make the same mis-                     groups will need to seek out potential
   take. To do so risks diminishing                  donors to help them undertake their
   the chances that the EC process-                  own outreach activities.
   es will leave a positive legacy on                   If the EC and civil society model
   the local legal culture.                          their approach largely on the example
                                                     of the Special Court for Sierra Leone,
    Based on the experiences of the
                                                     the chances of engaging the popula-
ICTY, the ICTR and the SCSL, the
                                                     tion in a meaningful way with the
engagement model of outreach is like-
                                                     EC process will be greatly enhanced.
ly to be more effective in Cambodia
                                                     At the most basic level, this means
than the transparency model.
                                                     engaging with people like the Village
    Secure Adequate Funding: The EC
                                                     Chief as soon as possible, and devot-
must devote sufficient resources to its
                                                     ing enough resources to create a regu-
Outreach Program to allow meaning-
                                                     lar meaningful dialogue with him.
ful outreach campaigns to be imple-
                                                     In October 2005, the Village Chief
mented. International donors should
                                                     told us he was skeptical about the
also support civil society efforts to
                                                     Khmer Rouge trials. Those senior
engage the local population on the
                                                     Khmer Rouge leaders still alive (and
Court. Though outreach has been
                                                     most likely to be prosecuted) had pow-
billed as a “core” activity for the other
                                                     erful political allies, making arrests
tribunals, there has rarely been ade-
                                                     unlikely, he said. This outcome, he
quate funding set aside for these activ-
                                                     said, would make the Extraordinary
ities from the Courts’ core budgets.
                                                     Chambers’ process “unsatisfying.”
In each case, the programs had to
                                                     Engaging him on this issue will
search elsewhere for state and non-
                                                     at least create a personal dialogue
state funding. This is where pro-active
                                                     about the things that matter most
high level officials will be important.
                                                     to him about the Court. This is an
Robin Vincent, the former Registrar
                                                     opportunity too good for the Court,
for the Special Court for Sierra Leone,
                                                     and NGOs, to miss.


Notes

Tracey Gurd serves as junior legal officer with the International Justice program of the Open
Society Justice Initiative.

1. To ensure confidentiality is maintained, this man’s real name has been omitted and his title
changed. For reference, the title of “village chief” in Cambodia is given to a person who typically
oversees up to 300 families, and is charged with handling disputes between the villagers, dealing
with safety and security issues and overseeing small scale economic development projects in the




126                                                                                     Open Society
                                                                                        Challenges



area. Usually the village chief holds this title for a long time, is not elected, and is well known to the
local community. This man held a similar type of title which required a degree of responsibility for,
and toward, his community. He was interviewed by the Justice Initiative outreach research team,
with which the author traveled, in October 2005.

2. “S-21,” or Toul Sleng, is an infamous prison and torture center used by the Khmer Rouge.
Situated in Phnom Penh, it contained cells the size of a toilet in which prisoners were locked and
chained up for long periods. Toul Sleng is now a museum open to the public.

3. The full legal title of this entity is the Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed during the period of Democratic Kampuchea. It is usually
referred to as the “Extraordinary Chambers” or “EC” (as it will be in this article) or the “Khmer
Rouge Tribunal.”

4. No Peace Without Justice (NPWJ), ‘Outreach and the International Criminal Court’,
NPWJ International Criminal Justice Policy Series No. 2, September 2004, available at http://www.icc-
now.org/documents/asp/papersonaspissues/3rdASP/NPWJOutreachPolicyICCSep04.pdf.

5. Report of the Secretary General on the Khmer Rouge Trials, UN General Assembly, 59th Session,
U.N. doc A/59/43, October 12, 2004, para 22.

6. See, for example, Harvey M. Weinstein and Eric Stover, ‘Introduction: Conflict, Justice and
Reclamation’ in Eric Stover and Harvey M. Weinstein (eds.) My Neighbor, My Enemy: Justice and
Community in the Aftermath of Mass Atrocity (Cambridge University Press, 2004) at 4-5.

7. NPWJ, above n. 5, p.7.

8. Ibid.

9. 1999 ICTY Annual Report, para 148, available at http://www.un.org/icty/rappannu-
e/1999/AR99e.pdf.

10. 2001 ICTY Annual Report, para 227, available at http://www.un.org/icty/rappannu-
e/2001/AR01e.pdf.

11. See Kristen Cibelli and Tamy Guberek, Justice Unknown, Justice Unsatisfied? Bosnian NGOs Speak
about the International Criminal Tribunal for the former Yugoslavia, published in the Education and
Public Inquiry and International Citizenship series of Tufts University, 2001, p.17. Available at
http://www.epiic.com/archives/2001/justicereport.pdf.

12. 2001 ICTY Annual Report , para 229, above n. 10.

13. 2004 ICTY Annual Report para. 320, available at http://www.un.org/icty/rappannu-
e/2004/AR04.pdf.

14. See Laurel E. Fletcher and Harvey M. Weinstein, “A World Unto Itself? The Application of
International Justice in the former Yugoslavia” in Eric Stover and Harvey M. Weinstein (eds.), above
n.6, at p.39.

15. See Alison Des Forges and Timothy Longman, “Legal Responses to Genocide in Rwanda” in Eric
Stover and Harvey M. Weinstein (eds.), above n.6, p.49.

16. Ibid., p.56. For more information about this study, see Chapter 8 (Timothy Longman and
Théonèste Rutagengwa, “Memory, Identity, and Community in Rwanda”) and Chapter 10 (Timothy
Longman, Phuong Pham and Harvey M. Weinstein, “Connecting Justice to Human Experience:
Attitudes Toward Accountability and Reconciliation in Rwanda”) in Eric Stover and Harvey M.
Weinstein (eds.), above n.6.

17. Ibid.

18. For more information on Internews’ outreach activities in Rwanda, see its website,




Justice Initiative                                                                                     127
The Extraordinary Chambers



http://www.internews.org.rw.

19. Des Forges and Longman, above n. 15 at p.56.

20. 1999 ICTR Annual Report, para 108 and 109, available at http://www.ictr.org/ENGLISH/annual-
reports/a54/9925571e.htm08.

21. Ibid.

22. See the Prosecutor v Jean-Paul Akayesu, Case No ICTR-96-4-T (Trial Chamber decision), delivered
September 2, 1998. Available at www.ictr.org.

23. This example was noted in Victor Peskin, “Courting Rwanda: The Promises and Pitfalls of the
ICTR Outreach Program” (2005) 3 Journal of International Criminal Justice 955, footnote 11.

24. Ibid, p.955. See also the International Center for Transitional Justice, “The Special Court for
Sierra Leone: The First Eighteen Months,” March 2004, available at http://www.ictj.org/africa/sier-
ra.asp, which notes on page 8 that “Rwandans have no sense of ownership of the ICTR and do not
necessarily perceive the tribunal to be for them. This is exacerbated by the fact that many ICTR staff
members have not even visited Rwanda.” See also Samantha Powers, “Rwanda: The Two Faces of
Justice” (50)1 The New York Review of Books, January 16, 2003.

25. Ibid, p.955.

26. Ibid, p.957. But see more generally his discussion of this issue on pp.955-957.

27. Ibid at p.954.

28. Ibid, at p.952.

29. Human Rights Watch, Justice In Motion: The Trial Phase of the Special Court for Sierra Leone,
October 2005, p.28, available at http://hrw.org/reports/2005/sierraleone1105/sierraleone1105.pdf

30. For more information about the outreach program’s work, see the SCSL outreach page of its
website, at http://www.sc-sl.org/outreach.htm.

31. Ibid. For more information on this and other SCSL outreach activities, see U.C. Berkeley War
Crimes Studies Center, From Mandate to Legacy: The Special Court for Sierra Leone as a model for
‘Hybrid Justice’, Interim Report on the Special Court for Sierra Leone, April 2005, p.33. Available at
http://ist–socrates.berkeley.edu/~warcrime/Papers/BWCSC%20Interim%20Report%20on%20the%
20Special%20Court%20for%20Sierra%20Leone.pdf.

32. “UN Sets Darfur Trials in Motion,” BBC News, April 5, 2005, available at
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/africa/4411497.stm.

33. “Sudan Bars ICC Investigators From Darfur,” Sudan Tribune, December 14, 2005, available at
http://www.sudantribune.com/article_impr.php3?id_article=13032.

34. See, for example, Waldimar Pelser, “Will ICC Prosecutions Threaten Ugandan Peace Process?”
Institute for War and Peace Reporting, November 16, 2005, available at
http://www.reliefweb.int/rw/RWB.NSF/db900SID/SODA-6J848C?OpenDocument.

35. Human Rights Watch, Human Rights Watch Memorandum for the Fourth ICC Assembly of States
Parties, November 2005, available at http://hrw.org/backgrounder/ij/memo1105/index.htm.

36. ibid.

37. See the Khmer Rouge Trial Task Force, An Introduction to the Khmer Rouge Trials, available at
http://www.cambodia.gov.kh/krt/english/introduction_eng/index.htm

38. DC-Cam, Third Quarterly Report: July – September 2005, available at
http://www.dccam.org/Abouts/Annual/Third_Quarterly_Report_July_September_2005.htm

39. Khmer Institute for Democracy, ‘Survey on the Khmer Rouge Regime and the Khmer Rouge
Tribunal 2004’ available at http://www.bigpond.com.kh/users/kid/KRG-Tribunal.htm


128                                                                                      Open Society
                                                                                      Challenges



40. The survey recognizes that it was not conducted by interview experts, nor did it employ profes-
sional scientific methods, and so should not be taken as representative of the views of the
Cambodian population as a whole. See ibid at p.1.
41. UNDP, Pathways to Justice, (UNDP, Phnom Penh, 2005), p. 60.
42. In 2004, approximately 40 percent of Cambodia’s population were estimated as living below the
poverty line – 2004 World Fact Book – Cambodia, CIA website, available at
http://www.cia.gov/cia/publications/factbook/geos/cb.html#People.
43. Recent figures suggest 71 percent of rural women and 50 percent of rural men living in rural
areas are functionally illiterate, while 25 percent of men and 45 percent of women are completely
illiterate: See A Fair Share for Women: Cambodia Gender Assessment, April 2004 (a report resulting
from a collaboration between UNIFEM, the World Bank, ADB, UNDP and DFID/UK, in coopera-
tion with the Ministry of Women’s and Veterans’ Affairs) at 81.
44. Local disputes are largely settled by village or district chiefs. See UNDP, above n. 41.
45. Laurel E. Fletcher and Harvey M. Weinstein, above n. 14, pp.33-34.




Justice Initiative                                                                               129
The Extraordinary Chambers



The Importance of
Monitoring the Trials at
the Extraordinary Chambers
Richard J. Rogers considers the role         the importance of the UN’s trial
of court monitors and states the case        monitoring in the context of transi-
for independent monitoring of the            tional justice.4
EC trials.
                                                 Some trial monitoring programs
The independent monitoring of crimi-         have been administered by NGOs—
nal trials is not a new concept, but         an example is the Judicial System
it has become more popular in recent         Monitoring Program in East Timor—
years. Trial monitors have long              while others function as part of
been sent by inter-governmental
                                             international organizations—exam-
organizations, NGOs, or international
                                             ples include the OSCE’s Legal System
organizations to cover specific trials.
Until recently, these have tended to         Monitoring Section in Kosovo and
include three categories of trial: politi-   the UN’s Legal System Monitoring
cally charged trials, such as those          Program in Liberia. Although trial
following the presidential elections in      monitoring programs may have
Azerbaijan in 2003;1 trials in which         different structures and mandates,
judicial actors are threatened, pres-        they all share one or more of the
sured, or at risk, which are monitored       following goals:
by the International Commission
of Jurists (ICJ) throughout the world;2        1. To help ensure fair trial and
or unique high profile trials, such as         due process, according to inter-
the trial of those charged with blowing        national standards.
up the Pan Am flight over Lockerbie
in 1988.3 But within the last decade,          2. To build capacity in the legal
trial monitoring has been used in              system, including the judiciary.
the broader context of transitional
                                               3. To disseminate information
justice and longer term programs
have been established in numerous              about the trials to the public.
domestic jurisdictions such as Bosnia
                                                This article will look at the
and Herzegovina, Croatia, Kosovo,
                                             arguments for including a trial moni-
Liberia, Macedonia, and Serbia and
Montenegro, or in hybrid tribunals           toring presence at the Extraordinary
such as those in East Timor and Sierra       Chambers in the Courts of Cambodia
Leone. Indeed, the Secretary-General         (EC), with particular emphasis on the
of the United Nations has noted              three aims enumerated above.


130                                                                    Open Society
                                                                        Challenges



The basic functioning and                     verdict) is clearly unreasonable in light
principles of trial monitoring                of the facts and evidence presented.5
                                              However, the substantive aspects of
How do trial monitoring programs
                                              the case may form the basis of reports
function? For the most part, monitor-
                                              that are aimed at providing general
ing programs go through a two- or
                                              case information to the public.
three-step process. The first step is
                                              The reports may be public or confi-
observing the trials from the public
                                              dential and vary in terms of style
gallery and obtaining public docu-
                                              and content, depending on the type of
ments. Thus, the trial monitors attend
                                              trial monitoring program, the intend-
court, observe the substantive and
                                              ed audience, and the desired effect.6
procedural aspects of the day’s hearing
                                              Most reports contain recommenda-
and note any irregularities or concerns
with respect to fair trial or due process.
Depending on the program’s mandate
and the issue under consideration,            Monitoring reports may include
the monitors may attend all sessions
                                              suggestions aimed at improving the
of a particular case or just specific
hearings. Because additional informa-         functioning of the courts, particularly
tion may be required to fully assess          with respect to international standards.
the issues in the case, monitors also
collect copies of public court docu-
ments—such as motions, responses,
                                              tions which are addressed to the
and decisions—from the court reg-
                                              governmental organs that administer
istry. Depending on the level of access
                                              the justice sector, court officials
granted to the program, monitors may
                                              (judges, prosecutors, defense coun-
also make copies of evidence, includ-
                                              sel), or other judicial actors. These
ing witness statements and transcripts
                                              recommendations may include a vari-
of hearings. This process forms the
                                              ety of suggestions aimed at improving
basis for identifying fair trial violations
                                              the functioning of the courts, particu-
and for obtaining accurate case infor-
                                              larly with respect to international
mation to disseminate to the public.
                                              standards of fair trial and due process.
    The second step is the issuance of        Specifically, these may include recom-
reports, which contain analyses of            mendations for legislative reform,
the trials or of certain aspects of the       amendments to court procedural
trials. Generally, the analysis is done       rules, changes in certain aspects
by assessing whether the procedures           of court practice, and training for
applied by the court conformed to             judicial actors.7
the applicable domestic law and to
                                                 Some trial monitoring programs
international human rights provi-
                                              also incorporate a third step, which
sions. Trial monitors are less likely
                                              involves following up on recommen-
to analyze the substantive aspects of
                                              dations in order to build judicial
the decisions for the purpose of rais-
                                              capacity. This has been particularly
ing concerns, unless a decision (or a


Justice Initiative                                                                  131
   The Extraordinary Chambers



   relevant to the programs administered       of the information if its publication
   by bodies involved in state building        could adversely affect the administra-
   exercises, such as the OSCE Mission         tion of justice.
   in Kosovo or the UN Mission in
   Liberia. Typically, follow-up involves      Helping to ensure fair trials—
   holding conferences or seminars to
                                               the “independent watchdog”
   discuss concerns with the relevant
   judicial actors, particularly judges,       One may question why a trial moni-
   prosecutors and defense counsel;            toring program is necessary to help
                                               ensure respect for fair trial and due
                                               process at the EC, whose inclusion
The mere presence of trial monitors            of international staff and incorpora-
                                               tion of fair trial provisions is designed
    may mean that judges perform               to ensure that international standards
     their functions more carefully.           of fair trials are met. It may be noted
                                               that, after painstaking negotiations
                                               between the United Nations and
   designing or taking part in formal          the Royal Government of Cambodia,
   training sessions; and advising legisla-    a structure has been agreed whereby
   tive bodies or court administrators         neutral and experienced international
   on amendments to legislation or rules       co-prosecutors, co-investigating judges
   of court procedure. Whether or not          and panel judges will work alongside
   a trial monitoring program becomes          their local counterparts. Further, a
   directly involved in judicial capacity      so-called “supermajority” vote, intend-
   building depends primarily on its rela-     ed to ensure that at least one of the two
   tionship with the judicial authorities      international judges on the five judge
   and available resources.                    trial panel forms the majority with his
       When administering a trial moni-        local counterparts, will be required for
   toring program it is crucial that           a conviction. In addition, fair trial pro-
   the trial monitors observe a few basic      visions contained in the International
   principles. Firstly, they must act          Covenant on Civil and Political Rights,
   impartially and independently when          Articles 14 and 15, have been specifi-
   assessing the trials. The trial monitors    cally incorporated into both the
   should not be influenced by political       Agreement between the UN and the
   considerations or interested actors.        government8 and the law establishing
   Secondly, the trial monitoring              the EC.9 In these circumstances, it is
   programs should not directly interfere      not unreasonable to expect the system
   in the proceedings or attempt to influ-     itself to ensure that the trials meet
   ence the decisions in ongoing trials.       international standards of fairness.
   Thirdly, if trial monitors receive confi-
                                                   It is not unreasonable, but probably
   dential information, either through
                                               naive. Despite these safeguards, the
   official or unofficial channels, they
                                               EC will be a novel and imperfect judi-
   should respect the confidentiality
                                               cial animal with a huge and complex


    132                                                                      Open Society
                                                                   Challenges



task. Even if all the relevant actors      whether a particular violation is an
performed impeccably, which is far         isolated example or part of a more
from guaranteed (and some would            systemic problem, which may require
argue far from likely)10, procedural       additional training or even an amend-
provisions may be breached, fair trial     ment to the procedural rules.14
rights may be disregarded, and due            Providing that trial monitors are
process may be compromised.11              qualified, properly trained, and act
That has been the experience of all        impartially and independently, they
the other trial monitoring programs        can serve as effective independent
that, among them, have covered a           legal watchdogs helping to ensure
wide variety of courts in different
jurisdictions, many of which have had
far less complex cases to hear and,        Trial monitors can serve as effective
arguably, have functioned in political
                                           independent legal watchdogs, helping to
environments more conducive to
fair trial norms. Trial monitoring         ensure that fair trial norms are respected.
programs have rarely been short
of concerns or violations upon which
to report.12                               that fair trial norms are respected.
    How can trial monitors help to         Thus, the trial monitors can comple-
ensure fair trials? Firstly, the mere      ment the other actors (judges, prose-
presence of trial monitors may mean        cutors, defense counsel, investigators,
that judges or other actors perform        and court administrators) in working
their functions more carefully since       to ensure that the EC functions
they are aware of being assessed.          according to international standards.
In Kosovo for example, defense
counsel regularly informed the Legal       Building capacity amongst the
System Monitoring Section (LSMS)           judiciary and judicial institutions
that judges were noticeably more care-     Some trial monitoring programs are
ful to respect the rights of the accused   placed within organizations whose
persons when LSMS trial monitors           mandate is to “modernize” the justice
were present. Secondly, by issuing         system and build capacity within the
reports that highlight fair trial con-     local judiciary—the capacity building
cerns or violations, the trial monitor-    function tends to be more important
ing program provides the judicial          in those programs that are part of
actors with objective legal analyses,      an intra-governmental body involved
which can initiate a positive change       in state building, such as the UN or
in court practice.13 In addition to        the OSCE. In these set-ups, the trial
their objectivity, trial monitors have     monitoring programs feed informa-
the advantage of being able to observe     tion about the functioning of the
how similar issues are addressed in        courts into the capacity building
different trials or by different courts.   apparatus, which administers projects
Thus the trial monitors can assess


Justice Initiative                                                               133
The Extraordinary Chambers



focused on improving the legal              Considering the high level of illiteracy
system such as training judges,             amongst the population, this will need
prosecutors and defense counsel,            to be done not just through reports,
amending laws, creating judicial            but also through regional discussion
institutions, or reallocating resources     forums or other media such as film.
to maximize efficiency.                         The EC alone will not be in a posi-
    The reports and recommendations         tion to do this as it will be too busy
by an EC monitor could be used to           prosecuting and trying defendants and
similar effect. For example, trial          is unlikely to advertise its own failings.
monitors may observe that investiga-        Media outlets will undoubtedly play an
tors are not giving the appropriate         important role—at least one NGO has
warning to witnesses before taking          already expressed interest in covering
statements, and may recommend               the EC and providing information
that immediate training be given to         to the rural areas through films and
investigators; or that a domestic proce-    discussions—but they are likely to
dural rule is contrary to the provisions    provide the facts without legal analy-
of the International Covenant on Civil      sis. Information provided through a
and Political Rights, and may recom-        trial monitoring program will comple-
mend that the rule is amended; or that      ment the media by injecting legal
there is inadequate accommodation           analysis. In other words, the trial
for protected witnesses, and may            monitors will be able to explain proce-
recommend that a safe house is estab-       dures, such as why the defense coun-
lished. Thus, the reports and recom-        sel is allowed to ask the witness so
mendations relating to observed fair        many questions, or why the judges
trial concerns need not be seen mere-       refused to admit certain pieces of
ly as negative assessments, but may         evidence; clarify substantive issues,
also be used in a constructive way to       such as what is the difference between
build a better system of justice.           genocide and a crime against humani-
                                            ty, or why the prosecutor has decided
                                            to drop charges against Mr. X; or pro-
Disseminating information                   vide a legal assessment of the fairness
about the trials to the public              of the trial. Such explanations will be
In order for the EC process to be a full    particularly pertinent in Cambodia
success, it will need to show not only      where there appears to be a low level
that it has fairly tried those most         of trust in the organs of justice.15
responsible for the crimes under the            The provision of case information
Khmer Rouge regime, but also that           by media outlets, in conjunction
it has assisted the process of reconcili-   with trial monitoring programs, will
ation and “closure” for the Cambodian       play a significant role in keeping the
people generally. To do this, accurate      population informed about the evi-
information about the trials will need      dence presented at trial, the decisions
to be disseminated, including on the        taken, and the reasons behind those
successes as well as the shortcomings.      decisions. This should ultimately assist


134                                                                       Open Society
                                                                       Challenges



the population in understanding their        tion of the trials at the EC has been,
own history under the Khmer Rouge            and remains, a serious concern. Some
regime. More generally, it may also          detractors will find it hard to believe
help to build trust in the Cambodian         that the trials are fair, absent objective
courts as a valid system for truth telling   evidence to the contrary. A positive,
and dispute resolution.                      independent assessment from a
                                             well-respected monitoring program
Who may benefit from a trial                 can help reassure the outside world
                                             that the trials have been administered
monitoring program at the EC?
                                             properly (if indeed they have), thus
It is misguided to see trial monitors as     adding legitimacy to the entire
protecting the rights of the defendant
and no more. A well functioning trial
monitoring program at the EC could
produce benefits for a whole range of        A monitoring program could
interested parties including witnesses,      benefit the general legal and judicial
victims, judges, prosecutors, the Royal
Government of Cambodia, the UN,              reform program in Cambodia.
and donor governments.
    In relation to witnesses and
victims, trial monitors can comment          process. The additional scrutiny
on the court’s treatment of witnesses        provided by trial monitors may also
and highlight where additional               encourage the defendants to cooperate
witness assistance is required. This         with the EC—as they know that
is particularly important when dealing       breaches of their fair trial rights would
with sensitive witnesses, such as rape       be noted—and, by highlighting
victims, or witnesses who are subject        inconsistencies, can help the courts
to intimidation or threats. Further,         reach consistency, thus benefiting the
by disseminating information to the          judges and prosecutors involved.
public, victims who are unable to                The government of Cambodia
attend court can obtain information          and the UN have the responsibility
on trials in which they are interested.      to ensure that the EC functions
    Judges and prosecutors, at least ini-    according to international standards.
tially, tend to be suspicious of trial       If the EC trials are administered fairly,
monitors. This is not surprising.            both bodies will be grateful to have
However, if the experience of other          objective trial monitoring reports to
programs is anything to go by, judges        rely on when facing detractors.
                                             Conversely, if problems do arise, it
and prosecutors at the EC will soon
                                             is better for the administrators to
appreciate that a well functioning trial
                                             be aware of these problems at
monitoring program can be to their
                                             the earliest opportunity.16 Further, by
benefit. For example, a respected
                                             helping to identify the strengths and
program can add legitimacy to the EC.
                                             weaknesses of the EC, a monitoring
It is no secret that political manipula-


Justice Initiative                                                                  135
The Extraordinary Chambers



program could complement efforts                      responsibly; a poorly administered
to use the lessons learned through                    program is likely to do more harm
the EC process to benefit the general                 than good. Each monitoring program
legal and judicial reform program                     must: define clearly its objectives;
in Cambodia.17                                        ensure that its monitoring and report-
   The $57 million budget is being                    ing style suit those objectives; remain
paid mainly by voluntary contribu-                    objective, independent, and impartial;
tions by member states, primarily                     and, so far as possible, establish good
Japan. Donor governments will want                    working relationships with the rele-
to know that their money is being                     vant actors in the EC. While trial
spent wisely and will likely welcome                  monitors will never be a panacea for
independent reports by programs                       all the potential ills of any court or
that have no vested interest in the                   tribunal, they have made a significant,
success or failure of the EC.                         positive contribution to the adminis-
   The potential advantages enumer-                   tration of justice in many jurisdic-
ated above presuppose that the trial                  tions. Such an outcome is highly desir-
monitoring programs set up to cover                   able in Cambodia.
the EC function effectively and report



Notes

Richard J. Rogers was chief of the Organization for Security and Co-operation in Europe (OSCE)’s
Legal System Monitoring Section from 2002 to 2005. He is currently a consultant in international
and transitional justice, based in Phnom Penh.

1. These trials were monitored by a consultant hired by the OSCE office in Baku, Azerbaijan, and
the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR). The trial monitoring
program followed the October 2003 presidential election, which sparked violent clashes in Baku
between security forces and demonstrators protesting against election fraud. The violence led to
600 detentions, and 125 people, including prominent leaders of opposition parties, were eventually
brought to trial. All of the trials were observed under the program in order to assess their compli-
ance with international obligations. The report concluded that the trials were not always conducted
in a manner that guaranteed the full implementation of international fair trial standards. See OSCE
Office in Baku, “Report on the Trial Monitoring Project in Azerbaijan 2003-2004” (2004), available
at: http://www.osce.org/publications/odihr/2005/04/13762_209_en.pdf.

2. The ICJ’s Centre for the Independence of Judges and Lawyers aims to promote and protect
judicial independence and impartiality. As part of its program, it monitors trials and issues public
reports. See for example, ICJ, “Attacks on Justice: The Harassment and Persecution of Judges and
Lawyers: 2002” (2003).

3. United Nations Secretary-General Kofi Annan appointed Dr. Hans Koechler of the Vienna-based
International Progress Organisation to monitor the trial at Camp Zeist in the Nertherlands, in 2000
and 2001. Koechler strongly criticized the conduct of the trials and the verdict. See “Report on and
evaluation of the Lockerbie Trial conducted by the special Scottish Court in the Netherlands at Kamp
van Zeist by Dr. Hans Köchler, University Professor, international observer of the International
Progress Organization nominated by United Nations Secretary-General Kofi Annan on the basis of
Security Council resolution 1192 (1998)” (February 3, 2001) and “Report on the appeal proceedings
at the Scottish Court in the Netherlands (Lockerbie Court) in the case of Abdelbaset Ali Mohamed




136                                                                                      Open Society
                                                                                     Challenges



Al Megrahi v. H. M. Advocate by Professor Hans Köchler, international observer of the International
Progress Organization nominated by UN Secretary-General Kofi Annan on the basis of Security
Council resolution 1192 (1998),” (March 26, 2002), both available at: http://i-p-
o.org/lockerbie_observer_mission.htm.

4. “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,” Report of the
Secretary-General, U.N. Doc. S/2004/616, August 23, 2004, para. 12.

5. The report by Dr. Hans Koechler on the Lockerbie trials is an example of where the substantive
findings (i.e. the assessment of the evidence) were criticized.

6. Trial monitoring reports tend to follow a similar layout to legal motions or court decisions.
Therefore, for each issue, the report may include: an introduction stating which fair trial norm may
have been violated and in which court; an outline of the relevant domestic and international applica-
ble law; a summary of the facts of the case, which led to the concern; an analysis in which the facts
are applied to the law; and, a recommendation of suggested action. The types of reports typically
issued by trial monitoring programs include:

Reports highlighting a particular decision issued by a court, which is considered to be in violation
of fair trial norms; for example, when a court issues a decision excluding the public from the court
without valid justification. These single issue / single court reports tend to be comparatively brief
(one to two pages).

Reports analyzing a procedural concern observed in numerous cases (i.e., a problem which appears
to be systemic within the legal system); for example, the failure of courts to justify properly their
decisions on pre-trial detention. These reports are likely to cite numerous examples from different
courts, but are unlikely to be longer than five pages.

Reports summarizing the evidence and outlining the concerns observed in a particular case; for
example, the overall assessment of a completed war crimes case. These “case-reports” generally
include background information, such as the charges, procedural history and verdict, as well as
the fair trial concerns and analysis. Thus, they are likely to be longer reports of 10 – 40 pages.
See e.g. the East Timor-based Judicial Systems Monitoring Program’s (JSMP) report “The Lolotoe
Case: A Small Step Forward,” July 2004 (available at: http://www.jsmp.minihub.org/reports.htm);
or the Kosovo-based OSCE Legal System Monitoring Section’s (LSMS) report “The Llapi Case,”
December 17, 2003 (available at: http://www.osce.org/kosovo/documents.html).

Reports analyzing the courts’ treatment of specific types of cases or issues; for example, how the
courts have dealt with cases involving witness intimidation (see the LSMS report “The Protection
of Witnesses in the Criminal Justice System” April 2003), or war crimes cases (see the OSCE
Mission in Croatia’s “Background Report: Domestic War Crimes Trials 2004,” April 26, 2005,
available at http://www.osce.org/croatia/publications.html).

Reports providing information and an overall assessment of the problems in the legal system.
This may include a number of categories of concerns, statistical information, and an outline of the
positive developments. These reports tend to range between 20 and 70 pages. See, for example, the
JSMP report “Overview of the Justice Sector, March 2005.”

7. Examples of each of these may be found in the LSMS and JSMP and OSCE Croatia reports cited
in the above footnote.

8. Agreement between the United Nations and the Royal Government of Cambodia concerning
the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic
Kampuchea, Articles 12 and 13.

9. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed during the Period of Democratic Kampuchea, as promulgated
on 27 October 2004, Articles 33 and 35.

10. The EC structure is a compromise, which the UN begrudgingly accepted after the Cambodian
government refused to allow the cases to be heard by a majority of international judges. Some human
rights organizations and experts fear that the trials may be subject to political interference by the
Royal Government of Cambodia, because the UN failed to secure full control over the functioning


Justice Initiative                                                                                   137
The Extraordinary Chambers



of the EC. Violations may also occur because the judicial actors are unfamiliar with the legal territo-
ry—the international judges will be applying foreign procedural rules and the Cambodian judges
will likely be applying international criminal law and human rights provisions for the first time. See
articles in the present issue of Justice Initiatives by Dinah PoKempner, Sok An, and Craig Etcheson.
11. Individual breaches of fair trial provisions do not necessarily result in an “unfair trial” per se;
minor breaches may not be enough to render the entire process unfair and even major breaches
can be rectified during the course of the trial. Whether or not the individual breaches render the
trial itself unfair must be assessed on the totality of facts and circumstances at the end of the trial.
12. See, for example, the reports issued by the Humanitarian Law Centre, Belgrade, regarding war
crimes trials held in Croatia, Bosnia, Kosovo, and Serbia and Montenegro, available at:
http://www.hlc.org.yu/english/index.php.
13. For example, in response to an OSCE LSMS report which criticized the courts for failing to
display court trial schedules in public view (in breach of the accused’s right to a public trial), the
Department of Justice in Kosovo issued a circular reminding the court presidents of their obligation
to do so. The court practice has since improved.
14. For example, in its report “Crime Detention and Punishment,” the OSCE’s LSMS highlighted
that, throughout the province and at all levels of courts, the judges were failing to properly justify
their decisions on detention and on punishment. In subsequent meetings between LSMS and the
presidents of the courts, the presidents acknowledged the problem and assured LSMS that they
would endeavor to improve the standard of their decisions. See OSCE LSMS, “Review of the
Criminal Justice System: Crime Detention and Punishment” (December 2004), available at:
http://www.osce.org/kosovo/documents.html.
15. Trial monitoring programs have fed information to the media, or even collaborated with the
media, in a variety of ways. For example, the Humanitarian Law Centre in Belgrade issues newslet-
ters and has held public forums in which issues relating to war crimes trials are discussed by jour-
nalists and other actors, including trial monitors. On the other hand, LSMS in Kosovo holds press
conferences following the release of its reports in which it takes questions from the media and the
public. How a monitoring program chooses to disseminate information will depend largely on its
purpose and mandate.
16. A trial monitoring program may also provide an additional benefit for the UN: by highlighting
human rights concerns, the monitoring reports can help the UN identify the strengths and weak-
nesses of the EC model, which will assist in the establishment of future international tribunals.
17. A number of organizations (e.g. UNDP, the Open Society Justice Initiative, and the
Documentation Center of Cambodia) have run programs to help Cambodian judges, prosecutors,
defense lawyers, politicians, journalists, NGOs and other actors prepare for the EC. The knowledge
and skills gained through this training, along with the experience at the EC itself, could ultimately
feed into the wider justice system in Cambodia and help the government implement its “Action
Plan” on legal and judicial reform.




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ALTERNATIVES

Transitional Justice
Approaches in Cambodia
Looking beyond the EC trials, Laura        available archival sources, Seven
McGrew assesses what means are             Candidates for Prosecution, authored
available to help Cambodians address       by Cambodia expert Steve Heder
their past.                                and Brian Tittemore of The War
                                           Crimes Research Office at American
Justice for the 1.7 million Cambodians
                                           University, analyzes evidence of inter-
who died under Khmer Rouge rule            national crimes related to the respon-
from April 17, 1975 to January 7, 1979     sibility of seven senior officials
has proved elusive. Finally, after         for their roles in developing and
years of negotiations between the          implementing the policies of the
government of Cambodia and the             Communist Party of Kampuchea
United Nations, it appears that the        (CPK), known as the “Khmer Rouge.”4
Extraordinary Chambers in the Courts       The authors conclude that there is sig-
of Cambodia for the Prosecution of         nificant evidence of individual crimi-
Crimes Committed during the Period         nal responsibility against these lead-
of Democratic Kampuchea (EC),1 may         ers. The EC prosecutor’s indictments
begin operations in early 2006. The        may include at least the six surviving
purposes of the EC, as stated by the       of those seven persons, plus former
secretariat of the government’s Task       Khmer Rouge military chief Ta Mok,
Force on the Khmer Rouge Trials, are       who is already in detention. An addi-
to hold the senior leaders and those       tional suspect, Kaing Khek Iev (known
most responsible accountable and to        as “Duch” ) the former commander of
set straight the historical record about   the Khmer Rouge prison and torture
their crimes, to provide justice to the    center S-21, is also in prison. Both
Cambodian people (those who died           Ta Mok and Duch have been detained
and the survivors), to educate the         for more than six years, but as yet no
younger generation about the Khmer         real investigation has taken place.
Rouge period, to strengthen the rule of        Beyond these perpetrators, who fall
law, and to contribute to the recon-       under the court’s jurisdiction of “sen-
struction of society.2                     ior leaders and those most responsible”
   For budgetary and planning pur-         for Khmer Rouge crimes, there are
poses, the Cambodian government            hundreds of mid-level leaders, and
and the UN have estimated that from        thousands of others who committed
five to ten indictments would be           crimes during the Khmer Rouge peri-
made, and approximately five trials        od. Seeking accountability is a hugely
held.3 A research study using recently     important goal for both Cambodians

Justice Initiative                                                             139
       The Extraordinary Chambers



       and the broader international commu-       understudied. According to one schol-
       nity. But equally important is to assist   ar, “There is a lack of discussion
       the Cambodian survivors in building        in policy circles and the international
       a better future for Cambodia. Other        relations literature of the relationship
       mechanisms, in addition to the EC,         between mechanisms and desired
       should be available for Cambodian          outcomes in terms of justice and
       society to deal with this legacy of        reconciliation.”6
       past human rights abuse and mass               The EC uses a retributive (state-
       violence.                                  centered) justice model. Today, many
                                                  authors suggest that restorative (vic-
                                                  tim-centered) justice may also have
      Seeking accountability is a hugely          an important role to play in countries
                                                  in transition from war and violence,
  important goal. But equally important           to peace and reconciliation.7 The EC
is to assist the Cambodian survivors in           process may help survivors know
                                                  more about their past, but is unlikely
 building a better future for Cambodia.           to meet their need to know the truth,
                                                  gain a full historical accounting, and
                                                  have the crimes acknowledged by the
                                                  perpetrators. For individual and socie-
       Beyond retributive justice                 tal healing to occur, other complemen-
       As countries emerge from periods of        tary processes are needed. However,
       armed conflict and mass violence they      as one author writes, “while justice
       seek a balance between truth, justice,     is necessary for sowing the seeds
       peace, and reconciliation. Justice is      of reconciliation between former
       balanced with political realities and      enemies, it is clearly insufficient
       international human rights standards       in itself.”8 The quest for vengeance
       with national realities. Judicial mecha-   must be balanced with forgiveness.
       nisms such as trials can serve the         Remembrance must be balanced with
       following purposes: challenging a          forgetting, so that loved ones can be
       culture of impunity; individualizing       honored, but memories of the past
       guilt, to avoid assigning guilt collec-    don’t overwhelm the present and the
       tively to an entire group; averting        future. The issues of punishment,
       unbridled private revenge; fulfilling an   reparations, amnesties, and pardons
       obligation to the victims to publicly      must be examined. The various types
       acknowledge guilt and innocence; and       of transitional justice approaches
       deterring or punishing.5 All of these      may focus on accountability, and can
       arguments have been made at various        include both judicial and non-judicial
       times in support of the EC.                responses.
           The victims’ need for justice must         Scholar Martha Minow notes that
       be balanced with the overall goals         victims of massive human rights
       of reconciliation—but these goals          violations often have difficulties
       may be contradictory and are certainly     setting priorities between retribution,


       140                                                                    Open Society
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public acknowledgement, financial          towards truth, justice, and reconcilia-
redress, psychological or spiritual        tion. Consultations should include
healing, building trust, establishing      how mental health, education, and
or strengthening democratic institu-       outreach programs can be devised
tions, or focusing on deterrence.9         to best support the EC process, as well
Cambodian survivors, who were dehu-        as any other complementary transi-
manized during the great hardships         tional justice mechanisms that may
of the Khmer Rouge regime, deserve         be applicable.
an opportunity to restore their feelings
of dignity and worth—and former
Khmer Rouge should ideally play
a role in this process. The potential      As countries emerge from periods of
healing such a process can eventually
                                           armed conflict and mass violence they
provide is immense, but the trauma
that will invariably result from old       seek a balance between truth, justice,
memories must be considered as well        peace, and reconciliation.
through adequate and widespread
mental health services.
    Many Cambodians and observers,
including the government and the              For a full accounting and a holistic,
UN, have said that national reconcilia-    societal approach, the different
tion is also a goal of the EC. The         perspectives of victims, survivors,
UN Secretary-General has addressed         perpetrators, and bystanders must be
these concerns in his latest report on     considered. To maximize the impact
the EC: “I am aware of the expectation     of the EC, needs that are not met in
of the Government of Cambodia and          that process should be addressed
the international community that           simultaneously elsewhere, to the max-
the Extraordinary Chambers will con-       imum degree possible. The govern-
tribute substantially to national recon-   ment states that prosecutions have
ciliation in Cambodia.” The report         been limited to senior leaders and
then goes on to describe the impor-        those most responsible “in the spirit
tance of outreach programs and media       of achieving justice, truth, and nation-
attention.10 The premise is that only      al reconciliation.”11 However, in the
                                           words of Judy Barsalou, “[p]erceptions
by finding justice can a society
                                           of the desirability of pursuing truth,
then move towards reconciliation.
                                           justice, and reconciliation, as well
However, some fear the tribunal
                                           as the appropriate means of doing
process may damage national recon-
                                           so, vary considerably among vic-
ciliation, as old memories are stirred,
                                           tims . . . and are shaped by time, group
resentments raised and vengeance
                                           identity, location, and other factors.”12
reconsidered. In any case, there is an
                                           Thus a process involving a broad cross
urgent need for consultations within
                                           section of society is needed to explore
Cambodian civil society to help deter-
                                           the various views and aspects so that
mine how best the EC could lead


Justice Initiative                                                               141
The Extraordinary Chambers



the processes work towards reconcilia-      happen. Oftentimes they ask who
tion and societal healing.                  was behind the Khmer Rouge, imply-
                                            ing that China and/or Vietnam were
What do Cambodians want?13                  the masterminds who manipulated
                                            the Khmer Rouge leaders into killing
The views of ordinary Cambodians
                                            their own people.14 However, probably
have been remarkable for their absence
                                            due to lack of exposure, few suggested
throughout the negotiations over the
                                            a truth commission—if such a process
EC, except through some incomplete
                                            were to be tried, intensive public edu-
and non-representative surveys done
                                            cation would be needed.
by a handful individuals and organiza-
                                                Few (and fewer as time passes) have
tions. Although during the negotiation
                                            been concerned that the peace would
period between 1997 and 2004, the
                                            be disturbed as a result of transitional
UN did consult certain members of
                                            justice mechanisms. However, notable
civil society for short meetings, this
                                            exceptions to this occur in towns such
process was neither inclusive nor
                                            as Pailin, in Northwest Cambodia,
transparent. Ideally, once the process
                                            which were controlled by the Khmer
of setting up the EC begins, a more
                                            Rouge until well into the 1990s.
open environment will exist where
                                                Amnesty was seen by the majority
such discussions become more preva-
                                            as unacceptable. Civil sanctions,
lent and ordinary Cambodians may
                                            though incompletely explored in
have a chance to share their views. In
                                            surveys, were found to be highly desir-
June and July 2005, there were several
                                            able. Reparations had been initially
public meetings about the EC, where
                                            seen as unlikely, but as plans for the
members of civil society and the gov-
                                            EC develop, and meetings have been
ernment all presented. These are            held by human rights organizations to
encouraging signs that the process is       promote this concept, positive public
finally beginning—and many believe          opinion is growing. Views on confes-
that once the EC starts it will take on a   sions, apologies and forgiveness remain
life of its own and spark discussions in    mixed, with more research needed.
communities.
                                                Cambodians are not pleased with
    In brief, according to existing         the weak apologies offered by some of
surveys, most Cambodians want trials        the Khmer Rouge leaders, and are
for the Khmer Rouge leaders, and            even outraged by the blanket denials
most prefer international trials. While     or blaming of others. The concept
most want to try the leaders, some          of reconciliation, especially “national
want to try others besides the leaders,     reconciliation” has often been cited as
either the regional authorities, or the     a reason (especially by some govern-
specific perpetrators who killed their      ment authorities) to forgive and some-
individual family members.                  times forget. But most Cambodians
    Almost 100 percent of those             are not willing to forget, though some
surveyed want to know the truth, why        felt they could forgive. Many still
Khmer killed Khmer and how did this         suffer from nightmares. Cambodians


142                                                                     Open Society
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feel that reconciliation is an important   international law over a period of time;
goal for Cambodia, and some feel           3) temporary, for a predefined period
that the trials or other mechanisms        of time; they cease to exist with the
can help the process.                      submission of the report of findings;
    Rebuilding trust in Cambodian          4) officially sanctioned by the govern-
society, whose social fabric was torn      ment to investigate the past; their
apart during the Khmer Rouge years,        authority allows for greater access to
is seen as an important goal. Other        information, for security and protec-
surveys are needed, ideally a nation-      tion, and for inquiry into sensitive
wide consultation. As the EC’s time
approaches, more researchers are
conducting limited surveys, the results
                                            “Truth” is more likely to be
of which will ideally become available      examined more completely in a truth
in the near future.
                                            commission than in trials.
Judicial and quasi-judicial
mechanisms                                 issues.16 During the negotiations for
In the thirty years since the end of       the EC, the topic of a truth commis-
Khmer Rouge rule, a number of              sion was raised, including by Prime
transitional justice mechanisms have       Minister Hun Sen. A Group of Experts
been established. Beyond national and      appointed by the UN in 1998, recom-
international tribunals, these include:    mended that “in addition to an ad hoc
truth commissions, civil sanctions or      international tribunal, “the United
vetting, reparations, and community        Nations, in cooperation with the
reconciliation mechanisms.15 All of        Cambodian Government and non-gov-
these mechanisms have been dis-            ernmental sector, encourage a process
cussed by various actors in reference      of reflection among Cambodians
to Cambodia, but some—in particular        to determine the desirability and, if
a truth commission—seem unlikely           appropriate, the modalities of a truth-
at present, especially while the EC        telling mechanism to provide a fuller
has still not begun.                       picture of the atrocities of the period of
                                           Democratic Kampuchea.”17 However,
Truth commissions                          due to political exigencies, this recom-
                                           mendation has never been pursued,
“Truth commission” is the acquired
                                           nor has a truth commission or public
name of official truth-seeking bodies
                                           process ever truly been an option.
that document a pattern of past
                                           Too many people in power fear that
human rights abuses. Four primary
                                           such a process could either embarrass
elements distinguish them. They are:
                                           or implicate them, and the competi-
1) focused on the past; 2) not focused
                                           tion for power between the various
on a particular event; they attempt to
                                           political parties and for economic
paint an overall picture of certain
                                           benefit takes precedence over any
human rights abuses or violations of


Justice Initiative                                                                143
          The Extraordinary Chambers



          potentially disruptive process. The        from defendants who have acquired
          United Nations has also not followed       it unlawfully or by criminal conduct,
          through with their recommendation.         but it should then be turned over
             Truth commissions were addressed        to the state.21 Under Cambodian law,
          specifically in two of the surveys noted   victims can seek reparations only
          above.18 In both cases, Cambodian          through simultaneous civil suits
          respondents did not seem interested in     brought in criminal cases. Although
          the idea. However, this is probably        reparations were not flagged as a
          because those asked were unfamiliar
                                                     priority in surveys, in Justice Initiative
          with the concept—the same respon-
                                                     meetings carried out in summer
          dents in many cases stated the goal
                                                     2005, Cambodians have more often
                                                     asked if they may receive reparations
                                                     through the EC. On the other hand,
Other examples of non-judicial activities to         others realize that individual pay-
                                                     ments for family members who died,
 deal with the legacy of the past are based          or those who otherwise suffered are
      on Cambodian culture and tradition.            unlikely, as there were so many vic-
                                                     tims. Neither the Cambodian govern-
                                                     ment nor other governments are seen
                                                     as having funds to pay reparations.
          of discovering the truth about what        However, some recent movements
          happened and why.19 “Truth” is more        may bring more attention to this issue.
          likely to be examined more completely      In March 2005, the Fédération inter-
          in a truth commission than in trials.      nationale des ligues des droits de
          In the broad public consultations
                                                     l’homme (FIDH) held a conference
          proposed, more education is needed
                                                     with Cambodian human rights NGOs
          about various transitional justice mech-
                                                     ADHOC and LICADHO, focusing on
          anisms, including truth commissions,
          so Cambodians can decide the most          victims’ rights. The recommendations
          appropriate processes themselves.          included: “Consultations with civil
                                                     society [are] also essential, notably
          Reparations                                on the appropriate forms of reparation
                                                     for victims, particularly collective and
          “Reparations provide compensation to
                                                     symbolic forms of reparation.”22
          victims of human rights abuses, usu-
                                                     A new “Collective for the Victims of
          ally in the form of money, but also
          as material, medical, or educational       the Khmer Rouge” (CVIC-KR) has
          benefits . . . Reparations are intended    been established in France as an open
          to repair the past damage to improve a     coalition of various organizations and
          victim’s or survivor’s lot in a material   individuals. Their purpose is to coordi-
          way.”20 There are no specific provi-       nate efforts to assist victims wishing
          sions for reparations in the EC law.       to be represented and exercise their
          Property or money may be confiscated       rights during the trials.23


           144                                                                     Open Society
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Vetting                                     various topics, such as crimes against
The question of vetting—which would         particular minority groups and the
involve removing convicted individu-        roles and memories of various ranks
als from their current positions—           of the former Khmer Rouge military;
is problematic in Cambodia. Some            planning public memorials; undertak-
former Khmer Rouge leaders still hold       ing public opinion surveys, writing
                                            competitions, and the translation of
positions in successor groups to the
                                            materials. Their public information
Khmer Rouge’s banned Communist
                                            room opened in 2005 and includes a
Party of Kampuchea. Removal from
                                            library, an education center to show
positions in these parties barely
                                            films, a café and welcome center, and
constitutes a sanction as they have
                                            a tribunal response team to provide
no real public authority to begin with.
                                            research assistance to the public.26
However, many of these leaders are
still treated with respect, and are
addressed by diplomatic titles—in
particular Ieng Sary, who maintains         History curriculum in schools still lacks an
a home in Phnom Penh. Although              explanation of the Khmer Rouge period.
most of the surveys of Cambodians
did not ask directly about lustration:
“Even among those participants
                                                Other examples of non-judicial
who didn’t want former Khmer Rouge
                                            activities to deal with the legacy of
leaders to go to prison, many felt
                                            the past are ongoing and based
strongly that [they] should not be treat-   on Cambodian culture and tradition
ed like high officials and given titles.    (the yearly ceremonies to honor the
Several mentioned they should not           ancestors or Pchum Bun, and other
be allowed to live in fancy houses          ceremonies to honor those who have
and that they should not be called          died) while others are more recent
‘your Excellency’.”24                       additions to Cambodian society (the
                                            public “Day of Hate” holiday, commu-
Non-judicial mechanisms                     nity reintegration projects, and con-
Other complementary means to assist         flict resolution training).27
societies in recovering from mass
violence have already been undertaken       Memorials and traditional ceremonies
in Cambodia, most importantly by the        In 1982, the then Cambodian
Documentation Center of Cambodia            Government’s28 “Salvation Front”
(DC-Cam).25 DC-Cam’s mission is             created a “Research committee into
captured in their monthly publication       the Crimes of the Pol Pot Regime,”
title: “Searching for the Truth.” Their     which produced a report in 1983.29
many projects include documenting           The report had gathered petitions
written, photographic, and other mate-      from 1,166,307 Cambodians and
rials; gathering histories; interviewing    recommended that May 20 be estab-
victims and perpetrators; researching       lished as a “Day to commemorate the


Justice Initiative                                                                 145
The Extraordinary Chambers



sufferings inflicted by the crimes          about the former regime, but with the
of the regime led by Pol Pot, Ieng          peace accords in 1991 this curriculum
Sary, and Khieu Samphan.”30 This day        was revised due to the presence of the
is still a public holiday in Cambodia,      Khmer Rouge in the coalition and has
known in English as the “Day of             not yet been updated.32
Hate.” Some suggest a better transla-
tion would be “Day of Maintaining           Community level
Rage” for T’veer Chong Kamhaeng—
                                            Community level projects may include
literally the “Day for Tying Anger.”31
                                            trauma healing and counseling,
The event is sometimes seen as a
                                            village development, and conflict reso-
vestige of the former Vietnam-backed
                                            lution training, including discussions
Peoples Republic of Kampuchea.
                                            on the Khmer Rouge past. Research
     The 1982 Research Committee also       on these activities remains sparse
recommended that memorials and              but much reconciliation has undoubt-
inscriptions to the genocide be erected     edly already occurred in communities
in Phnom Penh and the provinces.            where victims and perpetrators live
Many of these still exist, but unfortu-     together on a day to day basis.
nately they do not always reflect           The Center for Social Development
Cambodian tradition. Instead of cre-        (CSD) has well-established formats for
mated remains ceremoniously placed          public forums, where key stakeholders
in traditional stupas, or Buddhist          are invited to large public meetings
temples, existing memorials are often       to discuss particular topics. In 2000,
little more than piles of skulls and        CSD held three such forums on the
bones. There have been efforts over         topic of the EC in Phnom Penh,
the years to conduct ceremonies to          Battambang and Kampong Som.33
cremate the remains of the killing          A brief survey was conducted after
fields properly, in order to allow the      each meeting, eliciting opinions on
wandering souls of victims to rest.         the EC. Because former Khmer Rouge
                                            cadre attended the meetings there
Historical projects and writing             were many fears that there would be
More and more Cambodians have               violence or vengeance, but these were
written about the EC—especially those       not realized—at least on the days of
working at DC-Cam, and a handful            the forums themselves.
of others, most of whom were refugees           The Cambodian premiere of the
or have studied overseas. Although          film “Deacon of Death: Looking for
many of these documents are written         Justice in Today’s Cambodia” was
in English or French, they are increas-     held on July 19, 2005.34 In the film,
ingly translated into Khmer. There are      a Cambodian woman, Sok Chea, is
few history books in Khmer, and the         assisted by an NGO worker in visiting
history curriculum in schools still lacks   the village where she had lived and
an explanation of the Khmer Rouge           where her father was killed during
period. During the 1980s, there was         the Khmer Rouge regime. The woman
extensive education and propaganda          confronts the man she accuses of


146                                                                     Open Society
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causing her father’s death, saying she     society about appropriate transitional
wants to hear him acknowledge his          justice mechanisms. To meet the
acts. This film was the first public       needs of Cambodians—to know “why
event showing Cambodians dealing           Khmer killed Khmer,”—some sort of
with the past, and interviews a variety    national or community-based truth-
of villagers, some of whom still feel      telling mechanism is needed, given
angry and are seeking revenge, while       that a truth commission is unlikely.
others want to forget. It also focuses     In any case, Cambodian scholars and
on the accused man’s current activities
as a traditional healer and other “good”
acts that indicate he is apparently
trying to make up for his past. After      To meet the needs of Cambodians—to
the film’s screening, Sok Chea stood       know “why Khmer killed Khmer,”—some
up and emotionally called for justice
for her father’s death. According to
                                           sort of national or community-based
one of the film-makers, Willem Van         truth-telling mechanism is needed.
de Put, who has lived in Cambodia
for three years and directs the
mental health NGO Transcultural
Psychosocial Organization (TPO), the       others should be supported to write
film is intended to assist Cambodians      more books with information that
to start a dialogue: “this could help      is then made accessible to the public.
thousands to address their pasts           Since literacy is low, particularly in the
earlier than if they hadn’t seen the       countryside, films addressing the past
film. But you must be with the group,      and other non-text public information
find the right time, the right way talk    projects, such as the museum spon-
about it. After two to three times, you    sored by DC-Cam, will be important.
can go away and people will figure         For successful reconciliation and heal-
it out themselves . . . The film can       ing of society, these activities and their
be used, but you have to know how to       effects on individual Cambodians as
use it; we will be working on this, it     well as on Cambodian society at large,
is only the beginning.”35 The response     need much more study and funding.
to the film was mixed. Some observers          “I heard from many people, from
thought such an open confrontational       radio, or direct, etc, they want to know
approach was not “Cambodian” and           why. Their family and the relatives
that the results might be negative. But    that died during the Pol Pot regime, and
this and other films36 have been and       all of us we don’t know what happened,
probably will be increasingly used         and what are the relations between
in communities.                            Khmer Rouge, and China and US and
                                           also with . . . [ former Cambodian King]
    Although it is hoped that the
                                           Sihanouk . . . . What was the goal, to kill
EC will shed light on Cambodia’s trag-
                                           many people from hunger? Why send
ic history, a broadly representative
                                           people to the border and countryside, and
dialogue is needed within Cambodian


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why [did] they want to abolish the city?. . .         we know. I am sometimes crazy. . . crazy
All of that is in the darkness. If we try             because we don’t know what happened,
the Khmer Rouge, we would like to learn               why they wanted to kill people. [If we can]
from that regime, and to share with the               bring them to the trial, this is one thought
young generation so they do not do the                that makes the people hope. We should
same. And we should try to improve the                think about this. If we do wrong, maybe
situation rather than killing each other.             now nobody can kill us or put is in jail, or
And also from the other part of the people            blame us or sanction us, but later there
who were the victims, they still cry when             will be others who can make sanctions
they talk about it, when we hear it on                for others who do something wrong. This
the radio. Me too, if I talk about this,              could make the people happy, make them
I cry . . . .We must do the trial, so that            confident, make them trust law.”37



Notes

Laura McGrew is a former program associate with the Open Society Justice Initiative.

1. Khmer Rouge rule lasted from April 17, 1975 to January 6, 1979.

2. Secretariat of the Royal Government Task Force on the KR Trials, An Introduction to the Khmer
Rouge Tribunals, Secretariat of the Royal Government Task Force (August 2004), 5.

3. See for example, Fred Eckard, “Agreement Reached for Khmer Rouge Trials in Cambodia,”
United Nations, Highlights of the Noon Briefing, UN Headquarters, New York, December 17, 2003:
“For the purpose of drafting a budget proposal, a range of five to ten indictees was assumed by both
parties, but this figure could change depending on the investigative and prosecutorial strategy that
the future court may wish to adopt.”

4. Steve Heder and Brian D. Tittemore, Seven Candidates for Prosecution: Accountability for the
Crimes of the Khmer Rouge, Phnom Penh, Documentation Center of Cambodia (2004), 1.
(Originally published by the War Crimes Research Office, American University, and the Center
for International Justice in 2001.)

5. Meng-Try Ea, “Justice and Reconciliation: Case Study Cambodia,” a dissertation submitted
in partial fulfillment of the University’s requirements for the degree of Master of Arts, Centre
for the Study of Forgiveness and Reconciliation, Coventry University (September 2003), 11.

6. Wendy Lambourne, “Post-Conflict Peacebuilding: Meeting Human Needs for Justice and
Reconciliation,” Peace, Conflict and Development, 6 (April 2004).

7. Mica Estrada-Hollenbeck, “The Attainment of Justice through Restoration, not Litigation:
The Subjective Road to Reconciliation,” in Mohammed Abu-Nimer, Reconciliation, Justice and
Coexistence: Theory and Practice, Lexington Books (2001); Luc Huse, “Justice” in David Bloomfield,
Teresa Barnes and Luc Huyse (eds.), Reconciliation After Violent Conflict: A Handbook, International
Institute for Democracy and Electoral Assistance (2003); Neil Kritz (ed.), Transitional Justice: How
Emerging Democracies Reckon with Former Regimes, Vols. I–III, United States Institute of Peace Press
(1995); Eric Stover and Harvey M. Weinstein, My Neighbor, My Enemy, Cambridge University Press
(2004).




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8. See generally Meng-Try Ea, “Justice and Reconciliation.”

9. Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence,
Beacon Press (1998), 4.

10. United Nations General Assembly, Report of the Secretary General on the Khmer Rouge Trials.
UNGA, A/59/432, October 12, 2004, 5.

11. Secretariat of the Royal Government Task Force on the KR Trials, An Introduction to the Khmer
Rouge Tribunals, 6.

12. Judy Barsalou, “Trauma and Transitional Justice in Divided Societies,” United States Institute of
Peace Special Report 135 (April 2005), 10, available at: www.usip.org.

13. Information in the following section is taken from the following survey sources: Documentation
Center of Cambodia survey of 35 Cambodians, June 1997, described in Jaya Ramji, “Reclaiming
Cambodian history: The case for a truth commission,” 24 Fletcher Forum of World Affairs 137 (2000);
Laura McGrew, Truth, Justice, Reconciliation and Peace in Cambodia: 20 years after the Khmer Rouge
(February 2000), available at: www.advocacynet.org, full report available from the author, lamc-
grew@igc.org (written survey of 48 Cambodians and focus groups and individual interviews of 50
additional Cambodians); Suzannah Linton, Reconciliation in Cambodia, Documentation Center of
Cambodia, Documentation Series No. 5, (2004). Reports on DC-Cam nationwide survey distributed
through monthly magazine, between January and September 2002 (712 respondents), available at:
www.dccam.org; Khmer Institute of Democracy, “Survey on the Khmer Rouge Regime and the
Khmer Rouge Trial,”; KID (October 2004), available at: www.online.com.kh/users/kid, (536 inter-
views). Additional informal sources include IFFRASORC (Institute Français de la Statistique, de
Sondage d’Opinion de Recherche sur le Cambodge), unpublished national survey of 1,503
Cambodians, 1998; Cambodian Human Rights Action Committee, petition calling for EC signed
by more than 100,000 Cambodians; Cambodia Daily, informal survey of 24 rural Cambodians,
January 12-13, 2000; and three public forums undertaken by the Center for Social Development
in 2000 to discuss the EC.

14. This desire is echoed in the numerous meetings the Open Society Justice Initiative has held
in 2004 and 2005. People are often heard to say “Khmer couldn’t kill Khmer.”

15. See generally Minow, Between Vengeance and Forgiveness.

16. Priscilla B. Hayner, Unspeakable Truths: Facing the Challenges of Truth Commissions, Routledge
Press (2002); Priscilla B. Hayner, “In Pursuit of Justice and Reconciliation: Contributions of Truth
Telling,” in Arnson, Cynthia J., Comparative Peace Processes in Latin America, Woodrow Wilson
Center Press (1999); and Priscilla B Hayner, “Commissioning the Truth: Further Research
Questions,” 1 Third World Quarterly, 17 (1996), 20–21.

17. United Nations General Assembly and Security Council, “Identical Letters Dated 15 March 1999
from the Secretary-General to the President of the General Assembly and the President of the
Security Council,” United Nations, A/53/850, S/1999/231, March 16, 1999, 2.

18. See surveys by Ramji and McGrew.

19. Linton, Reconciliation in Cambodia, 219; McGrew, Truth, Justice, Reconciliation, 17–19.

20. Patrick J. Pierce, Transitional Justice Basics, Human Rights Education Institute of Burma (2003),
8.

21. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Passed by National
Assembly on October 4 and by Senate on October 8, 2004, Phnom Penh Cambodia. Available at:
www.cambodia.gov.kh/krt/.

22. FIDH Press Release, Recommendations Concerning the Khmer Rouge Tribunal and Its
Articulation with the International Criminal Court,” Report of the March 2-3, 2005 Conference,
www.fidh.org.

23. See www.justicepourlecambodge.org or email contact@justicepourlecambodge.org.


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24. McGrew, Truth, Justice, Reconciliation, 34.
25. See Documentation Center of Cambodia website: www.dcccam.org
26. “Public Information Room,” Searching for the Truth, 42 (First Quarter 2005).
27. Craig Etcheson, “Reconciliation in Cambodia: Theory and Practice” (Study Guide), 2005.
28. Known as the People’s Republic of Kampuchea, or PRK.
29. Tom Fawthrop and Helen Jarvis, Getting Away with Genocide? Elusive Justice and the Khmer Rouge
Tribunal, Pluto Press (2004), 72.
30. Fawthrop and Jarvis, Getting Away with Genocide?, 73.
31. Fawthrop and Jarvis, Getting Away with Genocide?, 74.
32. In 2004, Khmer Rouge leader Khieu Samphan (or his lawyer Jacques Verges) published a histo-
ry of the Khmer Rouge, essentially denying his responsibility in the structure and knowledge of the
atrocities. This book, now available in Khmer, French and English, was an instant hit and thousands
of copies sold in a matter of days at Cambodian markets. This reaction showed the strong interest of
Cambodians to read about former Khmer Rouge leaders. See Khieu Samphan, Cambodia’s Recent
History: And the Reasons Behind the Decisions I Made, Puy Kea, Ponleu Khmer Printing & Publishing
House (2004).
33. Center for Social Development, “National Issues Forum Report: Khmer Rouge and National
Reconciliation, 30 March 2000,” www.online.com.kh/users/csd/reports.
34. “Deacon of Death: Looking for Justice in Today’s Cambodia,” A Film by Jan van den Berg and
Willem van de Put, a co-production of drsFILM and the Buddhist Broadcasting Foundation,
www.drsfilm.nl.
35. Closing speech of Willem van de Put, General Director, Healthnet International, at film showing
of “Deacon of Death: Looking for Justice in Today’s Cambodia,” July 19, 2005.
36. Other films include “S-21” by award winning film-maker Rithy Panh, in which a Tuol Sleng sur-
vivor confronts his former jailers , and “The Khmer Rouge Rice Fields: The Story of Rape Survivor
Tang Kim” by Rachana Phat and DC-Cam, in which Tang Kim talks about her feelings towards her
assailants.
37. Interview in Phnom Penh with NGO staff, April 18, 2005.




150                                                                                   Open Society
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Reconciliation in
International Justice:
Lessons from Other Tribunals
Kek Galabru considers if there is a       other potential witnesses do not trust
place for restorative justice in the      the current government, given that
Extraordinary Chambers.                   many officials, including top leaders,
                                          were themselves junior members of
Thirty years after the Pol Pot regime     the Khmer Rouge. There are no mech-
systematically slaughtered almost one     anisms in place to ensure public
third of Cambodia’s population, the       recording of the history of the geno-
majority of those responsible have
yet to be tried. War crimes tribunals
provide a means of confronting the
                                          For Cambodia, it is still necessary to
crimes of the past, but if they are
to further peace and reconciliation       balance two ideals of justice: retribution
in countries emerging from violent        and restoration.
conflicts, like Cambodia, they must
ensure a role for victims in addition
to bringing justice to the perpetrators   cide as experienced by witnesses and
of atrocities. This means not only        victims. And many fear reprisals if
assuring victims’ participation, but      they testify, as no protection mecha-
also their protection.                    nisms have been initiated to date.
    The Cambodian government has          Witness protection units composed
now agreed, with the United Nations,      purely of Cambodian police officials
on the creation of the Extraordinary      with direct links to government
Chambers in the Courts of Cambodia        authorities, as currently proposed, will
(EC) to prosecute senior Khmer Rouge      provide little comfort.
officials, but serious concerns have
been raised about the court’s reconcil-   The search for justice
iatory role and the mechanisms for        in post-conflict societies
victim and witness protection and par-    Following a period of political rule
ticipation.                               characterized by violence, oppression,
    The Cambodian people generally        and poverty, postconflict countries are
continue to believe in the power of       often faced with serious economic,
justice to provide some closure for       social, and political instability. For
this terrible period in Cambodian         Cambodia, it is still necessary to bal-
history. However, people remain wary      ance two ideals of justice: retribution
of the EC. Most surviving victims and     and restoration.1 Retributive justice,


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the goal at the heart of the criminal        stances, for all victims and witnesses
justice process, is important in pre-        to testify in court and for all offenders
venting impunity and deterring poten-        to be prosecuted. Recognizing the
tial future criminals. By determining        challenge of involving victims in
individual responsibility, criminal tri-     public proceedings, and the impact of
bunals prevent the collective assign-        reliving a painful past, many postcon-
ment of guilt to entire groups, thereby      flict societies opt to create truth and
assisting in rebuilding society by dis-      reconciliation commissions (TRCs).
couraging further social division and        TRCs seek to rehabilitate societies by
alienation.                                  balancing accountability with forgive-
    Restorative justice focuses on rec-      ness. TRCs ask offenders to recount
onciliation, rehabilitation, and the         their crimes and take responsibility
rebuilding of society. A restorative         for them. At the same time, victims
                                             and their families can listen, ask ques-
approach to justice considers the
                                             tions, and recount their own victimiza-
impact of justice on a society’s future.
                                             tion and suffering. TRCs may even
As victims and perpetrators must
                                             encourage former perpetrators and
often co-exist in close proximity with
                                             victims to meet. Through this process,
one another, they must ultimately
                                             individual histories are recorded. The
learn to live with deep-seated animosi-
                                             historical accounting created through
ty and the painful memories of the
                                             TRCs is thus both broader and more
past. Civil conflicts often begin as
                                             detailed than that generated by ret-
internal domestic ethnic, religious, or
                                             ributive mechanisms of justice such
national divisions, later erupting into
                                             as international criminal tribunals.
military confrontations, massacres,
                                                 In Cambodia, the EC’s role is
or even genocide. They can involve
                                             likely to be entirely retributive. Some
thousands, even millions, of victims
                                             speculate that Cambodia’s current
and perpetrators. For a country to tran-
                                             government, many of whom were
sit from a state of war to one of pros-
                                             themselves former low to medium
perity and stability, participants in past
                                             level Khmer Rouge officials, have
conflicts must be reconciled. Without        opposed attempts to establish a TRC.
reconciliation, divided sectors of socie-    But even if the Cambodian govern-
ty will not overcome their hostility.        ment were to organize a TRC, it would
Without specific mechanisms to artic-        likely be ineffective, given that events
ulate and address the grievances of          took place 30 years ago and many per-
victims of atrocities, they can feel for-    petrators and victims alike are dead.
gotten by the peace process and fur-         However, experience from other tri-
ther alienated instead of reintegrated.      bunals shows that TRCs are neither
    The restorative emphasis on reha-        the only nor necessarily the best
bilitation and reconstruction is partic-     means to achieve restorative justice.
ularly crucial where there are large         At a minimum, mechanisms can be
numbers of victims and perpetrators.         established to ensure public trust in
It is impossible, in such circum-            the judicial process and the capacity


152                                                                       Open Society
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for witnesses and victims to partici-        initiative of these local commanders.
pate without fear of retaliation. To         As a result, there is some support
date, however, the EC has not included       among Cambodians for the prosecu-
such mechanisms.                             tion of low-level officials too.
                                                 However, the law creating the
Public concerns about the EC                 Extraordinary Chambers (the “EC
                                             Law”) limits its jurisdiction to “senior
Most Cambodians are skeptical that
                                             leaders and those most responsible”
the EC will deliver meaningful justice
for past atrocities, citing structural and
procedural inadequacies.2 While the
vast majority of Cambodians still want       Experience from other tribunals shows that
high-level officials to be prosecuted,
                                             truth and reconciliation commissions are
most also emphasize the need for
an impartial and objective tribunal.         neither the only nor necessarily the best
Some would prefer that no trial be           means to achieve restorative justice.
conducted at all rather than having
the country undergo a substandard
judicial process. Such preferences           for the Khmer Rouge atrocities.3
stem from concerns that government           Although the EC’s mandate does
agents will manipulate the proceed-          not explicitly limit the number of
ings to serve their own political ends.      indictees, most observers believe that
                                             only five to seven individuals within
Public trust in the prosecutions             the Khmer Rouge leadership are likely
There is a common misconception              to be prosecuted. Many of the senior
among Cambodians that the EC will            leaders are dead. Only two leaders,
prosecute all persons responsible for        Kaing Khek Iev (a.k.a. Duch) and Ta
crimes committed under the Khmer             Mok, are currently in custody.4 Other
Rouge, including low-level agents.           senior leaders—notably Ieng Sary,
Cambodians are particularly con-             Khieu Samphan, and Nuon Chea—
cerned about the ongoing survival            live comfortably in Cambodia’s capital,
and empowerment of these agents              Phnom Penh and in provincial towns.5
                                             Many Khmer Rouge leaders, including
in society today. Indeed, the individu-
                                             the movement’s supreme leader Pol
als who actually carried out, planned,
                                             Pot and senior cadres such as Son
or directed atrocities during the
                                             Sen, Yun Yat, and Ke Pauk have died
Khmer Rouge period were mostly low-
                                             since the 1975-1979 genocide.6
ranking officials, operating in districts
remote from the capital, Phnom Penh.             The number of potential defen-
While many officials received direct         dants is therefore likely to be extreme-
                                             ly limited: the vast majority of perpe-
orders from the central Khmer Rouge
                                             trators will not face justice for their
leadership, numerous murders were
                                             crimes. The prosecution of so few lead-
committed without orders, on the



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    ers means that individual historical       to protect the security and confiden-
    accounts are unlikely to be recorded,      tiality of victims and witnesses. As yet,
    thus restricting the creation of a         no independent witness protection
    comprehensive historical account           programs have been initiated along
    of the Cambodian genocide. Such an         the lines of the International Criminal
    outcome is unlikely to signify justice     Court’s (ICC) proposed Victim and
    for most victims and witnesses to          Witness Protection Unit. Under the
    the genocide.                              EC Law, the witness protection
                                               unit would be staffed jointly by
                                               Cambodian officials, leaving security
The number of potential defendants             to Cambodian police. The failure to
                                               implement an independent security
     is likely to be extremely limited:        unit is likely to deter witnesses from
the vast majority of perpetrators will         testifying. Witness protection units
                                               similar to those created for the
     not face justice for their crimes.        International Criminal Tribunal of the
                                               former Yugoslavia (ICTY) and envis-
                                               aged for the ICC, composed of inter-
    Involvement of victims                     national observers and workers, would
    It is unclear what role victims and wit-   go a long way towards easing fears.
    nesses will be allowed in the judicial
    proceedings. Currently, Article 36 of      The experience of past tribunals
    the EC Law allows victims to make          Can Cambodia learn anything from
    appeals.7 In addition, Articles 20, 23,    previous efforts to address genocide?
    and 33 require the co-prosecutors to       The 1994 Rwandan genocide left
    prosecute “in accordance with existing     approximately one million people
    procedures in force.” To what extent       dead. It is estimated that tens
    the co-prosecutors will use existing       of thousands of people participated
    Cambodian criminal procedure code          in the genocide.10 The conflict in
    is unclear and not addressed directly      the former Yugoslavia left almost
    by the EC law. Existing criminal proce-    200,000 Muslims dead and created
    dures allow victims to file companion      approximately 2 million refugees. It is
    civil complaints to criminal charges       also estimated that hundreds of thou-
    to obtain compensation.8 Victims           sands of civilians and soldiers were
    would possess the same rights as the       responsible for that ethnic cleansing
    defendant and prosecutor to appeal,        campaign.
    call and examine witnesses, and testi-
                                                  Following these conflicts, the
    fy.9 Whether these provisions will
                                               United Nations Security Council
    inform the Tribunal’s proceedings
                                               established two special tribunals,
    is not known.
                                               “convinced that . . . the prosecution of
        The EC Law also fails to ensure wit-   persons responsible for such acts and
    ness and victim protection. Article 33     violations. . . would contribute to the
    requires the court to provide measures     process of national reconciliation and


    154                                                                     Open Society
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to the restoration and maintenance           accounts are accurate and comprehen-
of peace.”11 The tribunals were mod-         sive, victims and witnesses feel that
eled after the military courts created       their victimization has been acknowl-
following World War Two.12 The               edged.19 Through acknowledgement
international criminal tribunals for         of their injuries, victims are often
both the former Yugoslavia (ICTY) and        more capable of recovering from their
for Rwanda (ICTR) were developed             injuries in order to lead more produc-
primarily to promote retributive             tive lives in society.20
justice. “National reconciliation” was           Partly as a response to the
a secondary purpose, envisaged as an         Rwandan and Yugoslav experiences,
indirect result of the tribunal.13 The       the Rome Statute establishing the
ICTR and ICTY aimed to provide rec-          ICC includes extensive measures to
onciliation by giving victims a sense        ensure the participation of victims
of justice that the main perpetrators        and witnesses. Article 15 of the Statute
of the crimes would be punished.14           allows victims to be represented in
    The role of witnesses and victims        pretrial procedural hearings and to
in the ICTY and ICTR was strictly            submit challenges to the Court.
curtailed to testimony of clear applica-     Although the ICC has not held any
tion to specific prosecutions. Many          hearings to date, it may be expected
witnesses were mystified when direct-        that these mechanisms will effectively
ed by judges not to tell their stories, or   allow victims to share their personal
when much of their personal experi-          perspective and history with the court.
ence was dismissed as irrelevant.
                                                 Additionally, in both Rwanda
The tribunals focused only on facts
                                             and the former Yugoslavia, supple-
relevant to the charges against the
                                             mentary mechanisms were created to
respective defendants, leaving victims
                                             provide for victim involvement and
and witnesses feeling neglected and
                                             some measure or restorative justice.
undermined.15 That exclusion has
                                             However, the results in the two coun-
since fueled significant criticism by
                                             tries hold sharply different lessons.
both victims and witnesses.16
    In both Rwanda and the former
                                             Rwanda’s Gacaca courts
Yugoslavia, affected populations
describe a disconnection from the            Although TRCs are the paradigmatic
international tribunal proceedings and       mechanism for restorative justice,
judgments.17 In the words of one com-        they are not the only ones. In Rwanda,
mentator, “international and foreign         a restorative role is played out through
tribunals are far less likely to promote     the state-run “Gacaca” courts, commu-
reconciliation insofar as the trials are     nity-based systems of dispute resolu-
not of and do not speak directly to          tion with precolonial roots.21 In Gacaca
the troubled society.”18 The tribunals       courts, offenders are required to
do not publish individualized accounts       recount their wrongdoing in the
of victims’ suffering. As a number of        presence of their victims and other
scholars have noted, however, where          affected parties. The victim has the


Justice Initiative                                                                155
        The Extraordinary Chambers



        right to challenge the perpetrator’s        on NGOs to communicate between
        story and in some circumstances             and integrate victims and witnesses.
        can receive monetary compensation.          The ICC takes a similar approach.
        By bringing the two parties together,       Lastly, the Commission was handi-
        the offender is required to seek for-       capped by a mandate that provided no
        giveness.22 Gacaca courts also allow        investigative powers and strictly limit-
        victims to hear the perpetrators’ con-
                                                    ed its duration to three years. These
        fession first-hand. Non-governmental
                                                    operational limitations rendered the
        organizations work closely with the
        Gacaca courts to ensure that more           Commission irrelevant to witnesses,
        Rwandans participate and that their         victims, and perpetrators alike.
        rights are protected.
                                                    Protecting victims and witnesses
                                                    To the extent that criminal tribunals
    Misunderstandings about the EC are              can contribute to reconciliation, it is
 likely to fuel a sense of injustice among          critical that they ensure the protection
ordinary Cambodians unless victims and              of victims and witnesses from reprisal.
                                                    Without personal security, witnesses
           witnesses are actively engaged.          are less likely to appear in court and
                                                    the proceedings are further distanced
                                                    from the victimized community.
        The Yugoslav TRC                               In the ICC, for example, a Victim
        The Yugoslav Truth and Reconciliation       and Witnesses Unit has been created
        Commission was established by               to ensure that victims and witnesses
        President Vojislav Kostunica as a           feel comfortable addressing the Court.
        supplement to the ICTY. However, by         The Unit is responsible for protecting
        the time it closed its doors three years    the security and well being of victims
        later, the Yugoslav TRC was widely          and witnesses by providing for their
        condemned as a failure, for a variety
                                                    protection, and medical and psycho-
        of reasons.
                                                    logical needs. The Court can prohibit
            First, it was established without
                                                    public disclosure of the victim or
        public consultation or debate.23 The
                                                    witness’s name or location. The Court
        Gacaca courts, by contrast, were for-
        mulated only after significant commu-       can also ensure that testimony is given
        nity and public involvement. By not         in closed sessions and that the victim
        engaging NGOs and victims before            or witness is known by a pseudonym,
        and during the TRC’s operation, the         or that their voice or image is altered.
        Commission         lacked    credibility.   Most importantly, the Court will rely
        Second, without the support of NGOs         on local and international NGOs
        and civil society, the Commission was       to protect the confidentiality of wit-
        unable to reach out to victims and          nesses’ identities and ensure that the
        witnesses. The Gacaca courts depend         Court itself respects its own rules.


         156                                                                     Open Society
                                                                    Alternatives



Supplementary                                rity of witnesses and victims
mechanism needed                             before, during, and after trial.
Concerns and misunderstandings               3. Create a separate witness and
about the EC are likely to fuel continu-     victim unit using international
ing discontent and a sense of injustice      monitors and domestic police
among ordinary Cambodians unless             agents in order to prevent acts of
victims and witnesses are actively           reprisal.
engaged, protected, and integrated.
Unless the EC is adjusted to meet            4. Develop a comprehensive his-
Cambodian perceptions of justice and         tory, which includes individual
their fear of continuing impunity,           accounts of victimization.
the tribunal will carry the stigma           5. Draft legislation clarifying
of politicizing the genocide rather          explicitly that victims have the
than accounting for it.                      right to fully participate in trials.
    The record of accomplishment of
the ICTR, ICTY, and ICC indicate              A TRC is not considered viable in
that the participation and protection      Cambodia, and the Gacaca courts,
of witnesses and victims serve as a        specific to Rwanda, do not provide
fundamental, if insufficient, compo-       a model. Yet serious thought needs to
nent of reconciliation. As currently       be given to a restorative justice mech-
envisaged, the EC fails to assure the      anism for Cambodia to supplement
protection and participation of victims    the EC.
and witnesses. Without institutions           Failure to take these or similar
focused explicitly on restorative jus-     measures may prevent the EC from
tice, it is unlikely that individual       emerging as an independent judicial
accounts of victimization and offens-      body capable of bringing justice and
es—the building blocks of reconcilia-      reconciliation to Cambodia. An inef-
tion—will be documented.                   fective tribunal would only encourage
    Rather than repeating the mistakes     past and would-be perpetrators of
of past tribunals, the following steps     genocide to think that impunity
should be considered for the EC to sat-    accompanies mass atrocity. The EC’s
isfy the need for a reconciliatory role:   success will depend on its ability to
                                           adapt to the needs and hopes of the
   1. Involve NGOs to ensure the           Cambodian people. Absent meaning-
   full participation and protection       ful steps to promote the protection
   of victims and witnesses in the         and integration of victims and wit-
   trials, if they wish, pursuant to       nesses, the EC will serve as little more
   Cambodian law.                          than a $56 million dollar exercise to
   2. Create additional legislative        appease the international conscience.
   measures guaranteeing the secu-




Justice Initiative                                                                   157
The Extraordinary Chambers



Notes

Kek Galabru is the founder and president of the Cambodian human rights NGO LICADHO. Nema
Milaninia and Justin Joe Flurscheim provided extensive assistance on this paper.

1. For a general understanding of principles of transitional justice, including a more specific expla-
nation of retributive and restorative forms of justice, see Miriam J. Aukerman, “Extraordinary Evil,
Ordinary Crime: A Framework for Understanding Transitional Justice,” 15 Harv. Hum. Rts. J. 39
(2002).

2. For an overview of the main criticisms leveled at the EC, see Dinah PoKempner’s article in the
present issue of Justice Initiatives. For more on Cambodian public opinion concerning the Tribunal,
see Laura McGrew’s article.

3. See the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, with inclusion
of Amendments as promulgated on October 27, 2004 (NS/RKM/1004/006) (“EC Law”).

4. Kaing Khek Iev was the former chief of the Khmer Rouge torture center at Toul Sleng in Phnom
Penh. Ta Mok, also known as the “Butcher” controlled the northern area of the Khmer Rouge terri-
tory and referred to himself as supreme commander.

5. Ieng Sary was the deputy prime minister under Pol Pot and led a guerrilla war against the
Cambodian government after the Vietnamese pushed the Khmer Rouge out. He was convicted in
absentia and sentenced to death but was later granted amnesty in 1996. The amnesty is not
thought to extend to crimes other than genocide, and is not seen as an obstacle to prosecution.
Khieu Samphan was the president of the Khmer Rouge. Nuon Chea was Pol Pot’s chief lieutenant
and deputy general secretary of the Communist Party.

6. Son Sen was the Khmer Rouge defense minister and Pol Pot’s chief advisor. Yun Yat was Son
Sen’s wife and in charge of information and education. Ke Pauk was party secretary of the northern
zone and responsible for massacring hundreds of people.

7. This follows Article 35 of Agreement Between the Royal Government of Cambodia and the
United Nations Concerning the Prosecution Under Cambodian Law of Crimes Committed During
the Period of Democratic Kampuchea: “The Extraordinary Chamber of the Supreme Court shall
decide appeals made by the accused, the victims, or the Co-Prosecutors against the decision of the
Extraordinary Chamber of the trial court.” For more on the role of victims in the EC, see Susana
SáCouto’s article in the present issue of Justice Initiatives.

8. See Criminal Code Article 27. See also Cambodia’s Law on Criminal Procedure Article 131.

9. See Law on Criminal Procedure Article 79, 133 and Criminal Code Article 14.3, 24.

10. The number of people who participated in Rwanda’s genocide is debatable. Some studies have
even held that approximately 200,000 people were directly or indirectly involved in the genocide in
some way. See Scott Straus, “How many perpetrators were there in the Rwandan genocide? An esti-
mate,” 6 Journal of Genocide Research 85 (2004).

11. UN document S/RES/955 of 8 November 1994; see also Report of the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia Since 1991, U.N. SCOR, 49th Sess., at 12,
U.N. Doc. A/49/342 (1994) where ICTY President, Antonio Cassese specifically stated that “the
Yugoslav Tribunal is a tool for promoting reconciliation.”

12. See Ruti Teitel, Transitional Justice, Oxford: OUP (2001), 31-39.

13. See Antonio Cassese, International Criminal Law, Oxford: OUP (2003), 6. As Jaya Ramji similar-
ly notes, international trials are intended to deter future crimes and provide retribution for victims.
However, reconstruction, rehabilitation, and reconciliation are ancillary effects which may indirectly
result. Alternatively, many scholars also argue that there is a duty to prosecute human rights
offenders, regardless of how it effects political and social transition. Jaya Ramji, “Reclaiming



158                                                                                       Open Society
                                                                                     Alternatives



Cambodian History: The Case for a Truth Commission,” 24 Fletcher F. World Aff. 137 (2000). See
also M. Cherif Bassiouni, “Accountability for Violations of International Humanitarian Law and
Other Serious Violations of Human Rights,” in Bassiouni, M. Cherif (ed.), Post-Conflict Justice,
Ardsley, NY: Transnational Publishers (2002), 26; Diane F. Orentlicher, “Settling Accounts: The
Duty to Prosecute Human Rights Violations of a Prior Regime,” 100 Yale L.J. 2537, 2548 (1991).
14. As the first President of the Yugoslav Tribunal, Antonio Cassese, explained “Far from being a
vehicle for revenge,” the ICTY individualizes guilt by prosecuting leaders that bear collective respon-
sibility, such that the “Yugoslav Tribunal is a tool for promoting reconciliation.” See Report of the
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, U.N. SCOR, 49th
Sess., at 12, U.N. Doc. A/49/342 (1994).
15. See Michael P. Scharf and Paul R. Williams, “‘The Role of Justice in Building Peace’: The
Functions of Justice and Anti-justice in the Peace-Building Process,” 35 Case W. Res. J. Int’l L. 161,
175 (2003).
16. See Neil Kritz, “Progress and Humility: The Ongoing Search for Post-Conflict Justice,” in
Bassiouni (2002), 59.
17. International IDEA, “South East Europe Public Agenda Survey” (2002). According to the survey,
only 24 percent of people in Montenegro and 6 percent of those in Serbia trust the ICTY. Available
at http://www.idea.int/press/pr20020404.htm.
18. Jeremy Sarkin and Erin Daly, “Too Many Questions, Too Few Answers: Reconciliation in
Transitional Societies,” 35 Colum. Human Rights L. Rev. 66, 718 (2004); see also Todd Howland &
William Calathes, “The International Criminal Tribunal, Is It Justice or Jingoism for Rwanda?
A Call for Transformation,” 39 Va. J. Int’l L. 135 (1998).
19. See Harry James Cargas and Bonny V. Fetterman, (eds.) The Sunflower: With a Symposium On the
Possibilities and Limits of Forgiveness. New York: Schocken (1997), 103; Michael P. Sharf and Nigel
Rodley, “International Law Principles on Accountability,” in Bassiouni (2002), 90.
20. Many have argued that retributive mechanisms are dominated by judges and lawyers and neg-
lect the individualized history of victims and witnesses. Therefore, instead of contributing to recon-
ciliation by compiling a history of abuse, the tribunals could contribute to greater resentment and a
sense of injustice by neglecting individual experiences. See Erin Daly, “Transformative Justice:
Charting a Path to Reconciliation,” 12 Int’l Legal Persp. 73, 103 (2002); Donald W. Shriver, “Truth
Commissions and Judicial Trials: Complementary or Antagonistic Servants of Public Justice?” 16
J.L. & Religion 1, 8-9 (2001).
21. See generally Maya Goldstein-Bolocan, “Rwandan Gacaca: An Experiment in Transitional
Justice,” J. Disp. Resol. 355 (2004).
22. Pernille Ironside, “Rwandan Gacaca: Seeking Alternative Means to Justice, Peace and
Reconciliation,” 15 N.Y. Int’l L. Rev. 31 (2002), 49.
23. See for example, Aryeh Neier, “The Truth About the Yugoslav Truth Commission,” Project
Syndicate




Justice Initiative                                                                                       159
                                 Justice Initiatives

The Open Society Justice Initiative, an operational program of the Open Society
Institute, pursues law reform activities grounded in the protection of human
rights, and contributes to the development of legal capacity for open societies
worldwide. The Justice Initiative combines litigation, legal advocacy, technical
assistance, and the dissemination of knowledge to secure advances in the
following priority areas: national criminal justice, international justice, freedom
of information and expression, and equality and citizenship. Its offices are in
Abuja, Budapest, and New York.


Board
The Justice Initiative is governed by a Board composed of the following members: Aryeh Neier
(Chair), Chaloka Beyani, Maja Daruwala, Anthony Lester QC, Juan E. Méndez, Diane
                             ´
Orentlicher, Wiktor Osiatynski, András Sajó, Herman Schwartz, Christopher E. Stone, Abdul
Tejan-Cole and Hon. Patricia M. Wald.

Staff
James A. Goldston, executive director; Robert O. Varenik, director of programs; Zaza
Namoradze, Budapest office director; Kelly Dawn Askin, senior legal officer, international
justice; David Berry, senior officer, communications; Sandy Coliver, senior legal officer,
freedom of information and expression; Tracey Gurd, junior legal officer, international justice;
Julia Harrington, senior legal officer, equality and citizenship; Katy Mainelli, administrative
manager; Chidi Odinkalu, senior legal officer, Africa; Heather Ryan, Khmer Rouge Tribunal
monitor; and Martin Schönteich, senior legal officer, national criminal justice.

Special thanks to Panhavuth Long, project officer with partner organization Bridges Across
Borders, for his assistance in developing this publication.



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