Al Jazeerah article quotes Karnavas on ECCC aspiration vs. actuality

ECCC_LogoI was recently asked by journalist Julia Wallace to provide some thoughts for an article she was writing for Al Jazeera, focusing whether the ECCC has had a positive impact on the Cambodian court system.  Though I was quoted correctly and reasonably in context, much of what I had provided was lost during the editing process. Since the article came out (http://www.aljazeera.com/indepth/features/2014/03/khmer-rouge-tribunal-failing-expectations-20143293030347313.html) some have commented that my views are overly harsh and dismissive, or that I fail to acknowledge the challenges in Cambodia.   I think not, but you be the judge.  Here is the full text of what I provided to Ms. Wallace for the Al Jazeera article:

I have been involved in various projects over the past 20 years dealing with the Cambodian judicial system.  I am also a big supporter of harvesting what is useful and applicable from the ECCC, both procedurally and substantively, and to apply it in the regular courts.  (See my article, based on my presentation at the ECCC legacy conference: Bringing Domestic Cambodian Cases into Compliance with International Standards – Applicability of ECCC Jurisprudence and Procedural Mechanisms at the Domestic Level, posted on my blog michaelgkarnavas.net/blog).  With this as a backdrop, I’ll attempt to provide some answers to your questions.

I do not see any meaningful improvements in the judiciary – and in that I include, judges, prosecutors, lawyers, judicial police and court administrative staff. Cambodia has never, and I underscore, never, enjoyed an independent judiciary since it gained its independence.  This is a significant point, since it highlights the lack of reference of what constitutes an independent and impartial judicial system, a healthy, vibrant and independent Bar, and an abiding respect for the rule of law, particularly by the institutions that are responsible for promoting and ensuring the rule of law (all are subject to the law equally, and the law applies equally to all).

The ECCC was the latest, and perhaps last, opportunity to improve the Cambodian judicial system, by being the so called “model” court.  In my opinion, the ECCC has not lived up to its potential.  Some very good lessons can be learned from this experiment. Some positive results have been achieved.  But in many ways the ECCC has failed.  That said, all is not lost.  As I have pointed out in the past, some good law and procedure has come from the ECCC that is directly applicable to the local courts, especially relating to the international human rights/fair trial rights guaranteed by the Cambodian Constitution.  However, I have yet to see any meaningful effort to even begin a dialogue, let alone see action, on how to apply any of this at the local courts.  And when the topic comes up, usually it is about getting funding from the UN or some NGOs to look into this, provide material and financial assistance, and so on. There is ample good will from the international community (the Germans in particular), but the local counterparts tend to focus on the money, as if a project on sustainable judicial reform is an ATM machine.

Truth be told, nothing can be adopted and implemented from the ECCC on a uniform and consistent manner by the courts in Cambodia without political will from the very top.  There are few profiles of courage in the Cambodian judiciary, and the nail that sticks out gets pounded in.  The Ministry of Justice, which will need the blessings of the Prime Minister as well as the CPP leadership, will need to take the lead on this.  Regrettably, I see no efforts in that direction.  Sadly, many of the reforms could be adopted with little political cost or fear.  But an independent and impartial judicial system, complemented by a robust and independent Bar, can be a lethal cocktail in a place where political, social and economic change is craved not as a matter of if, but of when.

No doubt some national judges, prosecutors, lawyers and court staff have learned quite a bit from their ECCC work experience.  This is very positive.  But I suspect that once the ECCC comes to an end, the skills and knowledge gained will rapidly dissipate as these folks head back to their old jobs.  It need not be this way, but I seriously doubt it can be any other way. At least not until there is a political commitment from the very top for real change. And that means having to forgo the use of courts as a means of legitimizing illegitimate/illegal actions. A brave new world.

 As I note, it is still not too late to capitalize on the opportunity to enhance the Cambodian judiciary by introducing some of the very positive results – substantive and procedural – from the ECCC.  It just requires real commitment by the powers that be, followed by a bit of effort.  In the meantime, the ECCC is well placed to set up its own legacy committee composed of national and international judges, prosecutors, lawyers and administrative staff to begin identifying what legal decisions (jurisprudence) and procedures can be applied in the national courts.  National counterparts from outside the ECCC should be invited once there is some work product available to review and discuss.  Modalities on implementation can also be identified at this stage.

For this, all that is needed is a meeting place, plenty of which are available at the ECCC. Again, it all comes down to commitment. The question is whether such commitment really exists.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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