CRUEL AND IRONIC TWISTS OF FATE AND A SETBACK FOR The Extraordinary Chambers in the Courts of Cambodia (ECCC)

Jeffrey S. Brand



It may have taken only 13 days to dismantle decades of work to hold accountable those responsible for the crimes of the Khmer Rouge. From April 29 to May 11, 2011, an order from the ECCC and dueling press releases from ECCC International Co-Prosecutor Andrew Cayley and National Co-Prosecutor Chea Lang, punctuated by the tragic death of ECCC Chief of Public Affairs Reach Sambath, brought into sharp focus the inherent contradictions of a tribunal process that had managed to achieve significant successes despite its flaws. Now, in a cruel twist of fate, the prospect of making further progress on that difficult road may have dimmed significantly.

On April 29, 2011 the Co-Investigating Judges – You Bunleng of Cambodia and Siegfried Blunk of Germany – shut down their investigation of Cases 003 and 004 amid charges that the prosecutors had cursorily interviewed witnesses, made perfunctory visits to crime scenes, conducted a “sham desk study” and caved to political pressure. . On May 10, Mr. Cayley, issued a press release that appeared to buttress some of those charges, stating that evidence of additional grave crimes likely existed and demanding additional investigation of crime scenes and interviewing of witnesses. The Cambodian co-prosecutor, Chea Lang, issued a response within 24 hours (and without advance notice to the international co-prosecutor) supporting the judges’ conclusion that any further investigation would exceed the intended scope of the tribunal to only prosecute “senior leaders” and those “most responsible”. The following day, Reach Sambath suddenly died from a massive stroke. Some observers commented that pressures from the court may have contributed to the death of the highly respected, Columbia University School of Journalism graduate and former reporter.



The consequences of this sad chain of events may be all too evident. Indeed, the attitude of the Cambodian co-prosecutor in combination with the attitude of the judges bodes ill for the future of the tribunal. The structure of the tribunal is complex and the result of political compromises along the way. Inherent in that compromise is a decision-making process that is likely to thwart any further proceedings in Cases 003 and 004 or, perhaps, any other cases at all.



To be sure, there is the right of potential civil parties – a term of art within the ECCC process – to apply to become parties to the proceedings. But, they must do so within 15 days of the date on which the co-prosecutors were notified of the co-investigating judges’ order, in this case May 18. Even if that date had not come and gone, the limited time to make application, the minimal information made public about the facts of Cases 003 and 004, and the difficulty of disseminating information in Cambodia in the best of circumstances, would have made the time frame too short to yield a significant response. Add to that the fact that the co-investigating judges are given broad discretion to determine whether civil parties may intervene, and the result of any such application is likely pre-ordained by the judges’ April 29 order. Moreover, the right of appeal to the Pre-Trial Chamber is not likely to alter the result in light of the broad discretion that the Chamber gives to the judges’ orders.



Alarmingly, the events of the past month are well on their way to yielding the most bizarre result yet. On May 18 (ironically the same date that the time for victims to intervene expired), a subsequent order from the co-investigating judges confirmed speculation in the Cambodian press that contempt actions might be brought against the international co-prosecutor based on his continuing requests to investigate Cases 003 and 004. In its May 18 order, the judges concluded that Co-International Prosecutor Cayley’s statements “violated [the ECCC’s] Rule of Confidentiality” and “lacked legal basis”. The judges ordered Cayley “to retract the parts of the statement” that violated the rules. Can a contempt order be far behind? Should that come to pass, the unthinkable would have happened: a tribunal that was set up to hold accountable those responsible for the horrific crimes of the Khmer Rouge will have turned the proceedings against the co-prosecutor seeking to investigate the crimes. Could there be a more unimaginable and depressing result?



The tangled maze of ECCC process is little known to those not familiar with the history of the tribunal or its progress to date. Ultimately, however, the world beyond Cambodia’s borders may need to understand only one fact: the voices of the victims may be forever silenced and the effort, belated as it may be, to hold responsible those accountable may be forever foreclosed by the judges’ ruling. The conviction of Duch and whatever may come to pass in Case 002 being the sole concrete results of the ECCC effort; important results to be sure, but results that fall far short of what might have been. The International Co-Prosecutor, Mr. Cayley understood this bleak reality in his press release when he noted that he would “request the deadline be extended”, but also reminded potential civil parties that under the law “the deadline for Civil Party applications now falls on Wednesday, 18 May 2011 at 4 p.m.”



Only we lawyers can reduce the victims of the Khmer Rouge crimes to its minimalist clinical definition which Andrew Cayley recites, as he must, in his press release: “a natural person or legal entity that has suffered physical, material or psychological injury as a direct consequence of at least one of the alleged crimes.” How many victims fall into that category we may never know given the legal bind that those who suffered at the hands of the Khmer Rouge now find themselves: Unaware of deadlines to plead for further investigation that would likely have uncovered the very victims the tribunal was established to redress. Only a cynic would support such an unseemly result or claim it consistent with the spirit in which the tribunal was established. The victims of the events of the past several weeks go far beyond those defined in the ECCC statute and include all who support the rule of law and believe that holding those accountable for mass human rights violations is the surest path to establishing it.



Which brings us to Reach Sambath’s sad, untimely death. It is a cruel metaphor and ironic twist of fate for what has gone on these past weeks at the Court. By all accounts, Reach Sambath was a courageous voice seeking to educate and inform. The week before his death, however, the Court acted in a way to silence the voices of the international co-prosecutor and the victims. At the same time, the most important public voice on the Court – Reach Sambath – is now silent as well. How sad for us all.





Jeffrey S. Brand is Dean and Professor of Law at the University of San Francisco School of Law and Chair of the law school’s Center for Law and Global Justice. He has worked extensively in Cambodia since 1994.
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18 May 2011
STATEMENT FROM THE CO-INVESTIGATING JUDGES

The Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) have noted the press release entitled “Statement by the International Co-Prosecutor Regarding Case File 003” (the Statement) dated 09 May 2011.

The Statement contained, among other things, information about crimes that according to the opinion of the International Co-Prosecutor required to be judicially investigated, thereby mentioning in detail as part of Case 003 alleged crimes, crime bases and criminal scenarios. Furthermore, the Statement also contained information about intended future actions by the International Co-Prosecutor related to the investigative process.

The International Co-Prosecutor lacked legal basis for making the above mentioned information public, and he also violated the Rule of Confidentiality. For these reasons, the Co-Investigating Judges have issued a reasoned Order whereby the International Co-Prosecutor has been ordered to retract the parts of the Statement containing this information within three working days.

The Order can be read in its entirety on the ECCC web site:
http://www.eccc.gov.kh/sites/default/files/documents/courtdoc/D14_EN.PDF