The dark shadow of US political interference at the ECCC: no free lunch

On 11 August 2017, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered their decision on the impact of the budgetary situation on Cases 003, 004, and 004/2. Last week I wrote about it, encouraging readers to review it. Analysis aside, nothing beats the original source, especially when it is well-reasoned and well-crafted.

So why the post? Well, for those who may not have the time or may not wish to get too much into the nitty-gritty of the comings and goings of the ECCC, there is one aspect of the decision that deserves scrutiny: the actual or perceived political interference in Case 003 by one of the major donors of the tribunal, the US. 

I have blogged about this before (see here and here), but now we have the views of the Co-Investigating Judges. The picture is not pretty. It also highlights one of the problems faced by tribunals relying on voluntary donor funding.

We can all agree that international courts must be independent from any outside influences, and especially from those who may be funding them. The concept of independence is or can be a matter of perspective, begging the question: just how independent can an international(ized) court be if it is dependent on funds from donor countries that may desire certain results in the cases investigated or individuals charged and tried? Borrowing from an American metaphor, is there such a thing as a free lunch when it comes to establishing and funding international(ized) courts?

A donation of funds to a judicial institution should come with no strings attached, other than that the court function correctly, adhere to the Rule of Law, and ensure the fair and independent administration of justice. This are articles of faith which donors openly and unreservedly embrace – at least in words. Donors tend to come from developed liberal democracies where the Rule of Law is part of the national DNA. Some of these states not only pride themselves on having an exemplary legal system and independent courts, but exuberantly (though on occasion misguidedly) try to export their exceptionalism when lending a helping (developing) hand.

Strings are usually attached when offering aid for development. Such aid is meant to effect tangible improvements that are sustainable; teach them to fish as oppose to handing out fish.

Since many of the recipient states are either illiberal democracies where the Rule of Law exists only in fiction (where the politically connected, power brokers, tycoons, and elites can use the law perversely for their own benefit), having strings attached to aid is necessary, reasonable, and appropriate. So, it all seems fair and proper to put the squeeze on a government that controls the judiciary to afford a fair and impartial trial to the political opponent imprisoned on trumped-up charges, or the detained civic-minded protestor who may be disaffected by legislation that deprives him or her of certain fundamental human rights, or the factory worker detained and charged for striking for better working conditions and a meaningful salary.

Some may argue that a foreign state using the power of its purse to squeeze a domestic judiciary to effect a particular result, however laudable, amounts to political interference in the judiciary of another state. The counter-argument is that this is good, acceptable political interference because of the cause and desired ends (interference of the white man’s burden variety).

The merits of a donor state threatening to withdraw its aid unless its demands are met – such as releasing a detained person or reversing a conviction on questionable charges and specious legal reasoning – are worth considering. The starting points for this discussion should be the efficacy of the judicial system, the independence of the judiciary, and the reasonableness of the charges considering the known facts and available transparency. However, this discussion, being beyond the scope of this post, will have to wait for another time.

Now to the essence of this post.

My starting point is that under no circumstances should an international court or a court established within a national court system and assisted by internationals and funded primarily by donor states (which I call “international(ized) courts”), be subjected to any sort of political interference. If an international(ized) court such as the ECCC is not properly functioning, the answer is simple: walk away, stop funding it, delegitimize it. No court can properly function, unless all organs and sections of the court and those working within them (judges, prosecutors, lawyers, and administration staff) are independent.

The need for an independent court was realized when the ECCC was established. The Agreement between the United Nations (UN) and the Royal Government of Cambodia has an escape clause (Article 28) allowing the UN to disengage and cease its funding – and, by implication, its recognition – of the ECCC were the court to “change the structure or organization or otherwise … function in a manner that does not conform with the terms of the … Agreement.” It is no great secret that the ECCC was conceived under the cloud of fear of political intervention by the Cambodian Government.

Prudently, the UN wanted to hedge its investment on the ECCC, but also to have some leverage over the Cambodian Government to prevent it from interfering with the independent functioning of the ECCC. The negotiations on the establishment of the ECCC, especially in determining who should be prosecuted, would put on notice even the most optimistic of proponents for a Khmer Rouge court that a long, arduous, and precarious future awaited whatever emerged from the negotiations.

Over the years, cries of political interference by the Cambodian Government have become commonplace. Mind you, not without some justification. The Prime Minister and other political elite have publicly made irresponsible comments, expressing their views and displeasure about Cases 003 and 004 going forward.

Aside from crying wolf, however, to my knowledge as International Co-Lawyer for Mr. Ieng Sary in Case 002 (who had incidentally been pardoned and amnestied by the Cambodian Government) and for Mr. Meas Muth in Case 003, I have not seen any tangible evidence of actual attempts by the Cambodian Government to interfere with or impede the work of the judges or the prosecutors in these cases. Nor am I aware of evidence of any sort of interference by the Cambodian Government in Case 001.

Yet, rumours abound. Whenever the national Judges and Co-Prosecutor dare voice a different opinion or take a different approach than their international counterparts, reflexively, NGOs, civil society organizations (primarily George Soros’s Open Society Justice Initiative, which accepts aid from the US Government), and representatives of some donor states are quick to denounce the Cambodian Government. It is as if it is a given that the national counterparts of the ECCC are incapable of thinking intelligently and analytically, and acting professionally. Suspicions, innuendo, and conjecture are bandied about as irrefutable proof that the fix is in: the national side – acting as the proxy of the Cambodian Government – is tanking the ECCC, especially when it comes to Cases 003, 004, and 004/2.

These suspicions, innuendo, and conjecture include the international side of the Office of the Co-Investigating Judges, especially the International Co-Investigating Judge.  How dare he and his staff find that the suspect in Case 004/2 does not rise to the level of most responsible – one of the jurisdictional criterion established for prosecution by the ECCC. And how dare he (and the National Co-Investigating Judge) throw down the gauntlet, calling into question the financial commitment of the donors: to pony up and meet the financial needs of the ECCC in Cases 003, 004, and 004/2 should any of the suspects be indicted, or risk a permanent stay of the proceedings to avoid violations of the Charged Persons’ fair trial rights. Obviously, someone must have gotten the International Co-Investigating Judge to turn a blind eye to his judicial oath to uphold the independence and impartiality of his office.

Convenient and comforting as this narrative may be to those who embrace suspicions, innuendo, and conjecture as proven facts, it hardly represents the truth, especially when all the facts are not available to the public.

What is available to the public and what we can now judge for ourselves are the efforts of the US, one of the ECCC’s major donors, to politically interfere with the judicial investigation of Case 003. The US is expecting a guaranteed return of its investment in the ECCC. It is expecting the Co-Investigating Judges to indict my client, Mr. Meas Muth. And no doubt, it is expecting a conviction with a sentence which, given my client’s age, would be a death-in-prison sentence.

The American Embassy in Phnom Penh protests too much that there is no quid pro quo for its support and contributions to the ECCC. What else can it do but deny that the US is applying heavy-handed tactics to try to ensure its desired result in the investigation of Mr. Meas Muth, i.e. his indictment and prosecution for, among other things, any alleged crimes that may have occurred during what is characterized as the 1975 Mayaguez incident. Having suffered casualties, not to mention the humiliation that followed (see The Last Battle: The Mayaguez Incident and the End of the Vietnam War by Ralph Wetterhahn for a detailed and riveting account), some American lawmakers think it is only fitting that Mr. Meas Muth, who is alleged to have been the head of the Democratic Kampuchea Navy at the time, be indicted, tried, and convicted. Never mind the evidence or whether Mr. Meas Muth fits the jurisdictional criteria. If the ECCC wishes the US to continue its funding, it must bend to the will of the US.

Attempts at political interference by American lawmakers started – at least from what is public – as early as 2011, when US Representative Edward R. Royce made remarks about Cases 002 and 003 to the effect that unless the Co-Investigating Judges produce a desired result, one that met former International Co-Prosecutor Andrew Cayley’s approval, funding for the ECCC should be cut off. (See the Ieng Sary Defense response to Representative Royce’s comments here.)

More recently, and more ominously, US Senator Lindsey Graham introduced a bill that explicitly threatened the loss of US funding unless Mr. Meas Muth is indicted:

Funds appropriated by this Act that are made available for assistance for Cambodia may only be made available for a contribution to the Extraordinary Chambers in the Court of Cambodia (ECCC) if the Secretary of State certifies and reports to the Committees on Appropriations that the ECCC will consider Case 003: Provided, That such funds shall be subject to prior consultation with, and the regular notification procedures of, such Committees: Provided further, That the Secretary of State shall seek reimbursements from the Principal Donors Group for the Documentation Center of Cambodia for costs incurred in support of the ECCC.

The draft bill did not pass in May 2017 as originally introduced, though what was introduced continues to carry the thinly-veiled threat of the original draft bill:

Of the funds appropriated by this Act that are made available for assistance for Cambodia under the heading “Economic Support Fund”, not more than $1,500,000 may be made available for a contribution to the Extraordinary Chambers in the Court of Cambodia (ECCC): Provided, That such funds may only be made available if the Secretary of State certifies and reports to the Committees on Appropriations that such contribution is in the national interest of the United States and will support the prosecution and punishment of individuals responsible for genocide in Cambodia in a credible manner: Provided further, That if the Secretary of State is unable to make the certification required by the previous proviso, such funds shall be made available for research and education programs associated with the Khmer Rouge genocide in Cambodia, which are in addition to funds otherwise made available under paragraph (3): Provided further, That such funds shall be subject to prior consultation with, and the regular notification procedures of, such Committees: Provided further, That the Secretary of State shall seek reimbursements from the Principal Donors Group for the Documentation Center of Cambodia for costs incurred in support of the ECCC.

According to Heather Ryan (Consultant to the Open Society Justice Initiative and an ECCC court monitor of sorts), the draft bill was “an unfortunate and inappropriate intervention by a funder of an independent court” that was fortunately corrected before the final bill. I agree, though in the past on this same bill, it seems that Heather Ryan tacitly condoned such conduct. Rather than denounce the bill for what it was, she chose to shift the blame, arguing that “it is an unfair leap…to interpret the statements [in the bill] as an instruction to the court to indict,” and that if there is any interference in Case 003 it is “from the Government of Cambodia rather than the United States.”

Senator Graham had a definite objective in mind when he drafted the bill the way he did; it was not some oversight – nothing unfortunate about it other than he ought to have known better given that he is a lawyer by training and has spent several years as judge advocate, military prosecutor, and defense attorney. Certainly Senator Graham would have grasped the notation that courts cannot be fair and just, and their judges’ decisions cannot be legitimate and accepted if independence is lacking, if the court and its judges are pressurized by outside forces. The point is that Senator Graham’s behavior (and all those other lawmakers who were supportive of the draft bill) was not intended to make the ECCC independent. And here is where the likes of the Open Society need to be consistent in denouncing political interference in any of its forms.

The point that Ms. Ryan misses is the psychological effect the bill has, and assuredly is intended to have, on the Co-Investigating Judges: the sting of soft – yet not-so-subtle – intimidation. A draft bill by the United States Congress can be viewed in many ways.  Even if not passed as originally drafted, it does carry weight, and has the potential of interfering with judicial independence. Getting the skunk out of the room does not get rid of the stench.

As I’ve noted, as with offering aid for development projects, the US expects results when contributing to the ECCC’s budget. There is nothing wrong with this, unless the expected results interfere with the independence of the ECCC’s various organs, especially the independence of the judges.  Here we see that some American lawmakers expect a guilty verdict for the US investment in the ECCC, especially for the partial financing of Case 003. The mere inference that funding is dependent on a particular result and not on the proper administration of justice (both substantive and procedural justice, actual and perceived), casts a dark shadow, tarnishing the integrity of the proceedings and the Court in general.  Those, such as Ms. Ryan, who tend to minimize the effects of the draft bill, are in denial, naïve, or simply comforted by situational ethics. Crossing the US does carry consequences, especially for judges who may wish to retain their jobs or advance to other international tribunals that fly under the UN flag and are dependent on funding contributions from the US or funded by the UN Security Council.

But let’s see how the Co-Investigating Judges have put it, or, shall we say, where they find themselves in light of the draft bill, and judge for ourselves:

48.  It does not require much imagination to realise the position that the text of the original bill alone put us in: If we indict Meas Muth court observers may say that we caved in to US demands; if we dismiss the case or do not indict for the Mayaguez incident, we risk the loss of a major donor to the ECCC. The version of the enacted legislation does not contain the same erode conditions as the bill but does at the end of the day do little to assuage our concerns: It makes a certification of the “prosecution and punishment of individuals responsible for genocide in Cambodia in a credible manner” into a precondition for disbursement of funds, and it ties the grant to the question of whether it is “in the national interest of the United States” to do so. This could, on the one hand, easily be interpreted as requiring indictments and convictions for genocide and as a pre-determination of the legal question of whether there was a genocide in Cambodia, an issue that still has to be decided by the only court with the competence to do so. On the other hand, we wonder when lire prevention or punishment of genocide could not be in the “national interest” of a country especially if it has ratified the 1948 Genocide Convention. Finally, it is left to a member of the US executive to certify the credibility of the judicial proceedings before the ECCC for the purpose of releasing the funds. To our mind, the average observer might be forgiven for thinking that this is at least a prima facie case of implied influence on the actual outcome of a case.

These observations by the Co-Investigating Judges speak volumes. The intent behind the draft bill in its original and amended forms leave nothing to the imagination: a naked power play designed to interfere with the independence and impartiality of the Co-Investigating Judges; placing the proverbial thumb on the scales. It’s about time to acknowledge the US’s political interference at the ECCC.

 

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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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