Judgement by essay at the Extraordinary Chambers in the Courts of Cambodia results in public apology

On 2 December 2015, the Public Affairs Section (PAS) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) published its November Court Report. The PAS saw fit to include in the Court Report an essay titled “Exploring Transgenerational Justice at the ECCC”, which was published without attribution. In the essay, which discussed PAS interviews of high school students and senior citizens about their perspectives on trauma and justice, the author reached some astonishing conclusions about crimes purportedly committed from 1975 to 1979 (the period in which the Khmer Rouge governed Cambodia). In the author’s view, “some of the most gruesome crimes against humanity were perpetrated [in the years between 1975 and 1979]” and, “[d]espite having only second-hand information about the genocide perpetrated in their nation, [students] envision a peaceful Cambodia similar to the pre-1975 Cambodian society.”1ECCC Court Report, November 2015, Issue 91, p. 2 (emphasis added).

As the Co-Lawyers representing Mr. Meas Muth in Case 003, I and my national counterpart, Mr. Ang Udom, were dumbfounded by this language. We were shocked to read that the voice of the ECCC was reaching such conclusions in a document published on the ECCC’s website and widely disseminated to the public and members of the media. We immediately wrote to the PAS requesting that the essay be retracted and a revised Court Report published.2Letter from the Co-Lawyers for Mr. MEAS Muth to the Public Affairs Section, “The November 2015 Court Report,” 03 December 2015. As we reminded the PAS, the trial and appeals in Case 002 are ongoing in relation to charges of crimes against humanity and genocide, and no one has been convicted of (or indicted for) any such crimes in Cases 003 and 004. Though judgement has been rendered in Case 001 (albeit not for genocide and only for crimes relating to the S-21 complex), the presumption of innocence remains alive and well in Cases 002, 003, and 004. We observed that judgement by essay in the PAS’s Court Report is completely inconsistent with the ECCC’s mission to provide justice for all – victims as well as suspects, charged persons, and accused – through a legal process that respects fair trial rights and due process.

Shortly after our letter was sent, the Court Report was removed from the ECCC’s website. The next day, the Chief of the PAS responded, “agree[ing] that parts of the content of the article should not have been included in its published form.”3Interoffice Memorandum from Chief of Public Affairs Section to Co-Lawyers for Mr. MEAS Muth, “Response to your Letter dated 3 December 2015”, 04 December 2015. His acknowledgment of this error was circulated to the Cambodia Daily, a local newspaper that ultimately published two articles on this issue.4Colin Meyn, Court Report Draws Ire of Tribunal Lawyers, Cambodia Daily, 4 December 2015; Tribunal Section Chief Apologizes for “Genocide” Article, Cambodia Daily, 5 December 2015. The PAS retracted the essay and published a revised Court Report. In the revised Court Report, the PAS noted that the above-quoted representations should not have been published and may “be perceived as prejudicial to the outcome of ongoing judicial proceedings.”5ECCC Revised Court Report, November 2015, Issue 91, p. 8. The PAS “remind[ed] the readers of the Court Report and the general public that any suspect, charged or accused person before the ECCC has the right to be presumed innocent of all charges until proven guilty through a final judgement.”6Id.

The PAS, a section established within the ECCC, is obligated to respect the presumption of innocence and fair trial rights. It should not have published the essay to begin with, as the essay depicted a partial ECCC that predetermines the cases before it. Nevertheless, to a certain extent, this egregious error is mitigated by the PAS’s timely response to our letter and public retraction of the essay.

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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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