Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia, by Nina H.B. Jørgensen, Edward Elgar Publishing, 2018, 404 pages, £ 144.00

With the benefit of hindsight, would the Cambodian government and the international community have joined hands and built the Extraordinary Chambers in the Courts of Cambodia (ECCC)? Possibly not. The Court has received more criticism than acclaim and is generally touted as a model not to be followed.

Nina H.B. Jørgensen, p. 359

The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia Anyone interested in the trials, tribulations, and contributions of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the development of international criminal law and justice, look no further than Professor Nina H.B. Jørgensen’s outstanding primer, The Elgar Companion TO THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA (The Companion to the ECCC). If there are any doubts about the ECCC’s legacy, particularly its positive contribution to international criminal jurisprudence, Professor Jørgensen has put them to rest. Thanks to her critical analysis of the ECCC’s procedures, of the cases tried and currently under investigation, and of the jurisprudence the ECCC has produced over the past decade – especially considering the general environment and context in which the ECCC operates – it is hard not to be impressed with the accomplishments of the ECCC, despite its numerous shortcomings and disappointing failures. Continue reading “Book Review – The Elgar Companion to THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA”

Book Review – Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism

Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism, by Jonathan Hafetz, Cambridge University Press, 2018, 191 pages, £ 85.00 ($ 90.00)

You must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proved guilty…the world yields no respect to courts that are merely organized to convict.

Justice Robert H. Jackson,
Speech to American Society of International Law cited in Henry T. King, Jr’s The Legacy of Nuremberg, Case Western Journal of International Law 34 (2002), 335, 336

If asked to recommend three books to a newly-minted judge at any of the international(ized) criminal tribunals or courts, but especially at the International Criminal Court (ICC), Jonathan Hafetz’s Punishing Atrocities Through a Fair Trial – International Criminal Law from Nuremberg to the Age of Global Terrorism (Punishing Atrocities) would be one of them. Indeed, I would suggest it as essential reading for judges, prosecutors, defense lawyers, and any judicial staff. I would also recommend Punishing Atrocities as obligatory reading for any introductory courses on International Criminal Law (ICL).

Image result for jonathan Hafetz — Professor Jonathan Hafetz

Jonathan Hafetz, a professor of law at Seton Hall University School of Law, admirably shows the tension between the need for establishing individual accountability for suspects and accused alleged to have committed or contributed to mass atrocities and the need to accord them fair trials based on recognized international principles and standards. Reconciling these two aims has been an ongoing process since the creation of the post-World War II International Military Tribunals at Nuremberg and for the Far East in Tokyo. While the divide remains, much progress has been made in affording greater due process to suspects and accused, in part, because of a higher recognition that acceptance of judicial results at the international(ized) criminal tribunals and courts is enhanced and fostered through fair trials and ensuing perceptions. Meanwhile, the experimentation of cobbling together procedural modalities from different legal systems for fairer procedural justice continues. Continue reading “Book Review – Punishing Atrocities Through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism”

Reflections on 2017: past is prologue

In 1788, Robert Burns, Scotland’s prodigious poet who is universally loved for his simple yet penetrating versus, penned the words to Auld Lang Syne – a song usually heard the world over on New Year’s Eve. Hard to find a Scot who does not know the words to and meaning of Auld Lang Syne (or the lines to most of Bobby Burns’ poems for that matter). But in case you have ever wondered, it basically means “a long time ago,” “days gone by,” or “for old times’ sake.”

In 1788 the Robert Burns sent the poem ‘Auld Lang Syne’ to the Scots Musical Museum, indicating that it was an ancient song but that he’d been the first to record it on paper. ¹https://www.scotland.org/features/the-history-and-words-of-auld-lang-syne

The poem/song is about looking back at old memories and friendships, reminding us to cling to these special moments and bonds as we are about to forge ahead into the New Year. But it is not so much about not letting go, as opposed to not forgetting – about cherishing past friendships and the past.

Caught in the moment of singing along (or trying like the devil to remember the lines we have mechanically mumbled through in previous years) as we celebrate the coming of the New Year and make our soon-to-be unkept resolutions, we tend to unconsciously ignore the biddings of Auld Lang Syne to reflect on the year passed. Imprudently, we habitually delude ourselves into thinking that looking in the rearview mirror is a superfluous indulgence that risks impeding our desire (and perhaps necessity) of letting go of the past for the sake of moving on.

With time waiting for no one, we have already started pressing into 2018. Unquestionably, 2018 promises to be an interesting year – if for no other reason than because of 2017. Hard to predict what is in store over the next 12 months, though much like examining a treasure map or a crossword puzzle, reflecting on some of the events over the past 12 months provide us with abundant clues. Not intending to present a summary of world affairs (such as The Economist, Time Magazine, and others do every December), I will merely refer to some of the events I have posted on, primarily limited to international criminal law (ICL) matters. And for anyone interested in what I have posted in 2017, here is a chronological list. You can also check the archives section of my blog. Continue reading “Reflections on 2017: past is prologue”

Footnotes [ + ]

THE END OF A READING AFFAIR: Cambodia Daily no more

Will no one rid me of this meddlesome priest?

King Henry II of England (1170) referring to Thomas Becket, Archbishop of Canterbury

The plane doors are about to close on my flight to Cambodia. When I land in Phnom Penh I will find this chaotic, noisy, and ever-expanding metropolis just as I left it a couple of months ago. Maybe some new construction projects will have started, maybe the traffic on a busy street has been re-routed for the building of yet another overpass aspiring to alleviate the out-of-control congestion, maybe another a trendy new coffee shop. As much as can ever be said of a teeming city of over two million people, everything will be pretty much the same. Except for one major difference: no more will I be able to wake up in the morning to get my daily fix of the news from The Cambodia Daily. Continue reading “THE END OF A READING AFFAIR: Cambodia Daily no more”

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. Continue reading “The dark shadow of US political interference at the ECCC: no free lunch”

The ECCC Co-Investigating Judges on ensuring respect for procedural safeguards in Cases 003, 004, and 004/2

It surely is common acquis among “civilized nations” in the meaning of Article 38(1)(d) of the Statute of the International Court of Justice by now that judges also have to ensure respect for the procedural safeguards in criminal proceedings.

ECCC Co-Investigating Judges (Combined Decision, para. 17)

If you practice international criminal law – no matter in which venue or capacity – the recent Decision handed down by the Co-Investigating Judges (CIJ) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) dealing with the impact of the budgetary situation on Cases 003, 004, and 004/2 is worth reading. Sans hyperbole, it is impressive, illuminating, and instructive.

CIJ You Bunleng (l) and Michael Bohlander (r)

Ever since the CIJ requested the parties (Prosecution, Defence, and Civil Parties) and the ECCC Office of Administration (OA) to make submissions on the possibility of a permanent stay of the proceedings due to a lack of funding on 5 May 2017 (Request), there has been lots of drama in the form of mischaracterizations, disinformation, misunderstandings, and genuine concern, swirling around the ECCC (see here, here, here, here, and here). I doubt the drama will subside with this Decision, as it ought to – at least for the time being. The CIJ have stirred up a hornet’s nest, deservedly so. Continue reading “The ECCC Co-Investigating Judges on ensuring respect for procedural safeguards in Cases 003, 004, and 004/2”

Distrusting the Standard Total View: A Tribute to Michael Vickery

Michael No. 2 (l) with Michael No. 1 – Michael Vickery

On 29 June 2017, Michael Vickery, the legendary historian on Southeast Asia and perhaps the very best expert on ancient Khmer (Cambodian) civilization, passed away. He was, as one writer put it, a historian’s historian. I knew Vickery (or Michael no. 1 as I kiddingly referred to him when his name came up) for over two decades. I had the privilege of spending hundreds of hours with him. We talked about history and politics, but mostly about the pre-Khmer Rouge period when he first came to Cambodia, his research on the Khmer Rouge period (formally known as Democratic Kampuchea – “DK”), which generated several articles and perhaps one of the most lucid texts on that period, Cambodia 1975-1982, and the post-DK / post-Paris Peace Accords (1991) Cambodia. Vickery was my friend, my teacher, and when it came to critical historical analysis from which credible conclusions could be drawn, my mentor. Continue reading “Distrusting the Standard Total View: A Tribute to Michael Vickery”

Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal

On May 15, 2017, The Cambodia Daily published an opinion piece by Michael G. Karnavas. The piece appears below:

Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal

MAY 15, 2017

By Michael G. Karnavas ¹ Michael G. Karnavas is a criminal defense lawyer. He was the co-lawyer for Ieng Sary at the Extraordinary Chambers in the Courts of Cambodia, and is now Meas Muth’s international co-lawyer in Case 003 at the ECCC.

Last week it was revealed that the Co-Investigating Judges (CIJ) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) confidentially informed the parties in Cases 003, 004, and 004/02 and the Office of Administration that they were considering invoking what amounts to a nuclear option: a permanent stay of the proceedings due to a lack of funding. Submissions were invited.

Court-watchers and “experts” immediately weighed in with claims of political interference. Judge Martin Karopkin, a reserve Judge of the Trial Chamber, joined the fray. Disquieting as his remarks may be, I admire Judge Karopkin’s honesty. Continue reading “Opinion: Due Process Not Negotiable, Even in Khmer Rouge Tribunal”

Footnotes [ + ]

“But Duch is a senior leader/most responsible while Chaem is not?”

Michael,

I notice that you express admiration for Judge Bohlander’s integrity here but do not say the same for Judge Bunleng. I presume this is because he refused to investigate at all in Cases 003/004? It’s been several years since I followed KRT developments closely. Perhaps you can enlighten me.

We have yet to see the reasoning behind the dismissal for Chaem and I know very little of Judge Bohlander, having left the country some time before he started work.

But to a non-legal observer, two very sad questions jump to the fore:

1) OCIJ’s decision not to exercise jurisdiction over Chaem took eight years. Isn’t this what lawyers would call a “threshold” matter best disposed of at the beginning? And can’t it be decided without examining much of the evidence supporting the charges?

I interviewed victims and witnesses from crime scenes allegedly overseen by Chaem. They told me how much they suffered.

Did this process build up hopes of justice only to let them down, not by deciding guilt or innocence but on what to the general public will appear to be an abstruse technicality? One baked into the process not by impartial judges but during heavily politicized negotiations?

2) Please help me understand — how could the ECCC accept jurisdiction over Duch but not over Chaem? In making this decision, is Judge Bohlander at odds with the court’s own jurisprudence?

Duch may have been responsible for the systematic extermination of 12,000 to perhaps 20,000 people. Chaem, if rough OCP estimates are to be believed, had a hand in a number of deaths that could quadruple the upper bound of Duch’s death toll.

But Duch is a senior leader/most responsible while Chaem is not?

Douglas Gillisson¹Douglas Gillison, an investigative reporter, has written for Time, the Village Voice, the New York Times and Foreign Policy. He was a staff writer at 100Reporters from 2013 to 2016. He served as Executive Editor of the Cambodia Daily from 2009 to 2011 and covered the ECCC from 2006 to 2011.

Thank you, Doug, for your comment and questions!

My “express admiration for Judge Bohlander’s integrity,” as you put it, is no reflection, as you seem to suggest, that I find Judge You Bunleng to have less integrity or to be less deserving of appreciation. By your own admission, you have not been following the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) for years. You are also not privy to much of what the Office of the Co-Investigating Judges (“OCIJ”) has done, how it has been functioning, how it interacts with the parties, and, most of all, how the two Co-Investigating Judges work together. Continue reading ““But Duch is a senior leader/most responsible while Chaem is not?””

Footnotes [ + ]

When indiscretion leads to misinformation: irresponsible and impugning comments concerning Cases 003 and 004 at the ECCC

Judge You Bunleng (l) and
Judge Michael Bohlander (r)

On 22 February 2017, the Co-Investigating Judges at the ECCC decided to dismiss the case against Ms. Im Chaem finding that she did not meet the ECCC jurisdictional requirements of being a senior leader or one of those most responsible for alleged crimes during the Democratic Kampuchea regime during the ECCC’s temporal jurisdictional period of 17 April 1975 to 6 January 1979.

Almost immediately after the decision was made public, critics began beating the drums. Expected. Decisions of this sort can be disappointing, especially to civil parties / victims. Lost in the scrum of blame-fixing are the facts. Continue reading “When indiscretion leads to misinformation: irresponsible and impugning comments concerning Cases 003 and 004 at the ECCC”