The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law, Simon M. Meisenberg and Ignaz Stegmiller (Eds.), T.M.C. Asser Press, 2016.
The Extraordinary Chambers in the Courts of Cambodia (ECCC) is a court that was established in 2006 within the existing court structure of the Kingdom of Cambodia to bring to trial senior leaders of Democratic Kampuchea (DK) and those who were most responsible for the crimes and serious violations of Cambodian penal law and international humanitarian law, custom, and the international conventions recognized by Cambodia, committed from 17 April 1975 to 6 January 1979.1 The ECCC was established by an agreement between the Royal Government of Cambodia (RGC) and the United Nations (UN) on 6 June 2003 (UN-RGC Agreement),2 after protracted negotiations that lasted several years.
For those who may not be acquainted with what is going on at the ECCC, a few words about its proceedings and achievements to date.
Thus far, the ECCC has completed one trial, Case 001 (limited to Kaing Guek Eav, alias “Duch,” the former Chairman of S-21, the notorious Security Center also known as Tuol Sleng). Case 002 was severed by the Trial Chamber in 2011 right before the trial was about to commence. The ECCC is about to complete the first part of Case 002 (which deals with the senior leaders, only two of whom remain alive – Nuon Chea and Khieu Samphan; Ieng Thirith was found to be incompetent to stand trial and has since passed away, while Ieng Sary, my former client, passed away during the trial). The ECCC Supreme Court Chamber will issue its judgment in Case 002/01 on 23 November 2016. Currently, the Trial Chamber is well under way in trying Case 002/02, while the Office of the Co-Investigating Judges is actively investigating Cases 003 and 004, an investigation that started in 2009.
Against this backdrop, Simon M. Meisenberg, a former Legal Advisor to the ECCC, and Ignaz Stegmiller, a former Legal Advisor to a human rights organization in Cambodia, have put together an impressive text on the ECCC, The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (The Extraordinary Chambers). This is the second book specifically on the ECCC, a fine complement to the first one, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Hybrid Justice), written by two well-placed Cambodian hands, John D. Ciorciari, an Assistant Professor at the University of Michigan, and Anne Heindel, a Legal Advisor to the Documentation Center of Cambodia and avid analyst of some of the most critical decisions in Cases 001 and 002.
Whereas Hybrid Justice drills down on the formation and structure of the ECCC and provides valuable insight into how future hybrid courts should be negotiated, financed, and structured (systemically and procedurally), Meisenberg and Stegmiller provide a tour d’horizon that informs the unfamiliar reader and stimulates those of us who practice or have practiced at the ECCC, or have followed the proceedings. The Extraordinary Chambers is a valuable contribution to anyone interested in international criminal law and procedure and its continuing development in areas such as gender-based crimes and victim / civil party participation in the proceedings.
First, a few words about Hybrid Justice’s contributions to our understanding of the ECCC.
In Hybrid Justice, Ciorciari and Heindel look at the history of the negotiations in establishing the ECCC and the jockeying for advantage between the UN and the RGC which, aside from distrusting each other, from the outset had different visions on how the court should be structured, the procedure it would apply, where it should be located, how it should be funded, and so on. Insightfully, Ciorciari and Heindel link the negotiating process and the resulting structure and procedure of the ECCC with the proceedings and jurisprudence.
Aside from analyzing the negotiating process and the emerging decisions (primarily dealing with the procedures and internal rules adopted by the judges), Ciorciari and Heindel also conducted extensive interviews with those most impacted by or involved in the day-to-day decisions issued by the various ECCC Chambers. These interviews provided grist for the mill, adding a crucial dimension to their analysis and making Hybrid Justice a perspicacious read for anyone involved in setting up future ad hoc or hybrid courts. Hybrid Justice also exposes the weaknesses in adopting a French-modeled civil law system, and the hazards of fashioning the procedure by adding, sometimes haphazardly or without appreciation, adversarial modalities from other international(ized) courts.
The Extraordinary Chambers also provides a brief sketch of the ECCC’s history and explores its procedural weaknesses, though mostly from an abstract conceptualization of the proceedings. Its 20 chapters range from the 2003 UN-RGC Agreement, to an analysis of some of the most important jurisprudence of the ECCC, to its potential legacy contribution to international criminal law and procedure. The book is divided into three parts.
Part I deals with the issues of the ECCC’s establishment, independence, and legacy. The chapters in this Part provide a perspective on the ECCC negotiations and the challenges of political interference and judicial independence. In addition, Part I contains a historical account of early attempts at prosecutions and the ne bis in idem principle, a Cambodian perspective on the expectations toward the ECCC, and the related challenges and accomplishments.
Part II goes on to consider the legacy of the ECCC with respect to substantive international criminal law. The chapters in this second Part contain interesting contributions that analyze the approach of the ECCC regarding crimes against humanity and war crimes, sentencing and the principle of legality, issues of jurisdiction, and modes of liability, in particular, Joint Criminal Enterprise (JCE). Contributors provide critical assessments of the ECCC’s jurisprudence related to the interpretation of genocide, forced transfer, sexual and gender-based crimes, and grave breaches perpetrated against protected persons and property.
Part III concentrates on the ECCC’s contributions to international criminal procedure. The chapters in this Part introduce the reader to the specifics of the ECCC’s structure, which was influenced by the French civil law system but with added peculiarities from adversarial systems and “creative” modalities which the judges have come up with and adopted into the Internal Rules.3 Contributions to this Part also explore the ECCC’s jurisprudence on expeditious trials, the standards related to the fitness of the accused to stand trial, the admissibility of torture-tainted evidence, and victims’ participation.
The Extraordinary Chambers is well organized and very informative – mostly in the descriptive sense. The subjects covered are weighty and relevant, providing a more than cursory overview. From an insider’s point of view, having practiced before the ECCC since 2008, the chapters tick all the relevant, significant, and controversial boxes, and are relatively solid, well researched, and balanced. Rather than deal with all 20 chapters of the book, I will focus on four chapters that I found particularly interesting but were either slightly wanting or exceptionally good. Full disclosure: consider the source of this critique; I am currently the International Co-Lawyer for Meas Muth in Case 003, having previously represented Ieng Sary in Case 002.
One chapter that left me unsatisfied was Dr. Helen Jarvis’s Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide. Setting aside part of the title of her chapter (she, among others, most notably Alex Hinton,4 has an expansive / non-statutory interpretation of what constitutes genocide), Jarvis disappoints because she is parsimonious in matters where she has much-valued inside knowledge, while excessive in matters where her knowledge and experience are peripheral. Jarvis is well acquainted with Cambodia and Cambodian politics, having lived in-country for decades. She is reputed to be an advisor to His Excellency Sok An, Deputy Prime Minister of the RGC, and the primary negotiator for the RGC in its dealings with the UN on the establishment of the ECCC. In her 2004 book Getting Away with Genocide? (co-authored with journalist Tom Fawthrop), she gives a comprehensive though arguably skewed account of the events leading up to the establishment of the ECCC, presumably to square with the narrative of the Cambodian People’s Party (CPP), Cambodia’s governing party since the demise of DK. Her book, for all its worth, was published before the ECCC was up and running, and before she had an opportunity to experience the functioning of the ECCC from the inside, having served as the Chief of the Public Affairs Section from the inception of the ECCC in 2006 until 1 June 2009, and thereafter as the Head of the Victims Support Section until 30 June 2010. Jarvis’s treatment of the negotiations is cursory at best, offering scant insight on what exactly was negotiated, particularly concerning who fits under the heading “most responsible,” and whether this is a discretionary issue to be determined by the Co-Prosecutors and Co-Investigating Judges, or whether it is a jurisdictional issue subject to judicial review. This issue remains contentious, and on occasion, has generated comments from the Cambodian government that have been interpreted as political interference.
Jarvis could have provided much needed insight given her involvement in and proximity to the negotiations. Instead, she devotes more than 22 pages of her 30-page article to the key features of the ECCC, a subject better suited for a legal scholar or practitioner.5
Overall, Jarvis does a yeoman’s job in describing the features of the ECCC misses the mark by serving a bland, almost uncooked, dish on the establishment of the ECCC. Considering her unique role in the negotiating process, coupled with her experience at the ECCC and the benefit of following its evolution over the years, Jarvis could have offered much more to our understanding of the ECCC’s establishment.
Another chapter that I found somewhat unsatisfying (not to be confused with inadequate, for it is anything but) was Sergey Vasiliev’s Trial Process at the ECCC: The Rise and Fall of the Inquisitorial Paradigm in International Criminal Law? It is not for want of examining the key aspects of hybridity of the ECCC procedure that Vasiliev mildly disappoints.
Vasiliev generally picks up many of the procedural quirks and calamitous offshoots from the ECCC’s mashing and mixing of procedural systems. However, his analysis at times borders on the apparent; viewed through a purely theoretical prism with little appreciation of the practical. Dissecting a decision, especially one that deals with procedure, requires a fair amount of appreciation of the practical applications of the decision. Such appreciation generally comes from actual practice, or, as was done by Ciorciari and Heindel, by conducting extensive interviews with those who have first-hand experience and are impacted by decisions on procedural issues.
I particularly found strange Vasiliev’s claim that “[e]xpecting the trial judges and their staff to master the case file to a degree that would equip the judges for a lead role in respect of proofing-taking was unrealistic.… Besides, … the judges must resolve a wide array of matters before the trial can start and are not in a position to devote full time to the examination of the dossier.”6 If so, then what is the sense of adopting the French civil law system? Judges are expected to know the dossier before the trial begins. They are the ones who decide which witnesses will be heard and in which order. And by not having familiarized itself with the dossier, the Trial Chamber not only delegated its authority to the prosecution – which generally led the witnesses to suit its case and not in any objective truth-seeking fashion as would be expected of the judges – but also managed to adopt an asymmetrical procedure that effectively favors the prosecution. Whereas the prosecution does a classical adversarial direct examination, the defense is limited to confronting witnesses through non-leading questions. As for the judges, their questioning has also come under fire from the defense. Not to mention, if judges are not familiar with what is in the dossier and have better things to worry about, then how will they be in a position to meaningfully and objectively question the witnesses?7
Though Vasiliev identifies many of these procedural quirks and provides us with a thoughtful conclusion, it seems obvious – to me at least – that he would have benefited a great deal had he taken the time to interview some of the insiders from the Chambers, prosecution, defense, and civil parties. Overall, however, Vasiliev’s chapter delivers.
There are two chapters that deserve honorable mention: Lachezar Yanev’s The Theory of Joint Criminal Enterprise at the ECCC: A Difficult Relationship and Anne Heindel’s Managing Enormous Mass Crimes Indictments: The ECCC Severance Experiment.
Yanev’s treatment of the ECCC’s decision on JCE is superb. The ECCC found that JCE III – the extended version of JCE8 – does not exist in customary international law, contrary to the jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY), from which JCE sprung. We now know – thanks to former ICTY Judge Mohamed Shahabuddeen coming clean9 – that JCE, as it was first decided in Tadić, is fiction. And, as a result, we now also know that the ICTY Appeals Chamber was less than candid when it said in Stakić that to have applied the co-perpetration mode of liability (as was done by the Trial Chamber presided over by Judge Wolfgang Schomburg) would have been ultra vires, since only JCE was beyond doubt customary international law.10
The ECCC Pre-Trial Chamber (PTC) was the first Chamber to pay no attention to the wizardry behind the curtain and to thoroughly analyze the cases and other jurisprudence that supposedly supported JCE III as a mode of liability under customary international law. As in the Wizard of Oz when Dorothy discovers there is nothing behind the curtain, the PTC judges found them to be unpersuasive and untenable. Mythology.
Yanev’s analysis is thorough and exacting. He cogently shows why the PTC and later the Trial Chamber were right in rejecting JCE III – no small feat since the judges at the ECCC have been prone to overly, and sometimes improperly, rely on ICTY jurisprudence. Yanev also points out, correctly, that the Trial Chamber, though it adopted the PTC decision on JCE III, relied on jurisprudence from the Special Court for Sierra Leone (SCSL) to erroneously hold that the common plan, design, or purpose of a joint criminal enterprise “must either have as its objective a crime or contemplate the crimes as the means of achieving this objective.”11 Yanev goes through the cases the SCSL relied on and convincingly shows that the ECCC Trial Chamber went too far: the common purpose elements should be criminal; participating in a non-criminal common purpose that merely results in the commission of crimes does not support a prima facie case of JCE I.
Yanev’s article should be added to the JCE essential reading list. Hopefully, the ECCC Supreme Court Chamber will not reverse course; the Office of the Co-Prosecutors (OCP) filed an appeal concerning JCE III,12 though the Supreme Court Chamber has yet to decide whether the OCP’s appeal is admissible, since it wasn’t relevant to Case 002/01.
Anne Heindel does an excellent job of distilling and dissecting the ECCC’s colossal misstep of severing Case 002 into mini-trials. On its face, severing Case 002 seemed a brilliant stroke of judicial management of an unmanageable leviathan of a case. However, the Trial Chamber’s reasons for severing the case were tenuous and inconsistent. In a public interview, Judge Cartwright candidly admitted that Case 002 was severed to cheat death from taking the octogenarian accused before they were tried (and found guilty; the verdicts seemed pre-ordained even before the accused were arrested).
Heindel’s in-depth knowledge of the ECCC’s procedure and jurisprudence, her up-close and in-person observations of the proceedings, and her insight from her extensive interviewing of ECCC insiders for Hybrid Justice, serves her well in teasing out the nuances associated with the severance decision. She is thorough yet measured in her analysis and criticisms of this decision.
During the launch of The Extraordinary Chambers in Phnom Penh on 19 October 2016, which I attended, Meisenberg called the severance decision “courageous.” Reading Heindel’s exegesis on this decision (and what has ensued since), “courageous” is not a word that comes to mind. I would characterize it as “half-baked.” The severance was a huge waste of time and resources, and has complicated immensely the proceedings in Case 002/02 – all of which Heindel deftly notes with clarity.13 Being familiar with Case 002, I venture to say that but for the severance of the trial proceeding (and some other daft procedural matters that are covered in various chapters of The Extraordinary Chambers), Case 002, in its entirety, would have been long over by now. Heindel’s chapter is a must-read on trial management for judges and their staff at courts with hybrid proceedings.
Some final remarks.
It is way too early to be discussing the legacy of the ECCC; its work is far from finished and, by all accounts, significant challenges lie ahead. Only when the ECCC closes its doors and the dust has settled will academics, practitioners, and others be able to fully assess the ECCC’s achievements and failures, its strengths and weaknesses, its contributions to the development of international criminal law and procedure, and its legacy. That said, it is not too soon to draw valuable lessons and best (or worst) practices from the ECCC. To this extent, The Extraordinary Chambers fills a gap between Hybrid Justice and what assuredly will follow Meisenberg’s and Stegmiller’s excellent survey of issues relevant beyond the ECCC. I highly recommend The Extraordinary Chambers and congratulate Meisenberg and Stegmiller (along with all the chapter authors) for their contribution to our better understanding of the ECCC and its jurisprudence.
- Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (“ECCC Law”), 27 October 2004, Art. 1.
- Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003 (“UN-RGC Agreement”).
- For a critical analysis on adopting of the Internal Rules, see Göran Sluiter, Due Process and Criminal Procedure in the Cambodian Extraordinary Chambers, 4 J. Int’l Crim. Just. 314-326 (2006).
- When Hinton testified before the Trial Chamber in Case 002/02, he indicated that in his work he does not use the legal definition of genocide, but “a much broader definition of genocide [that] refers to the intention to destroy a group because of who they are.” Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, E1/401.1, 14 March 2016, English ERN 01217257. See also Alexander Laban Hinton, Why Did They Kill? (University of California Press, 2005).
- Jarvis holds a PhD in Indonesian Studies and her work experience has not been in the legal field; she was Head of the School of Information, Library & Archive Studies at the University of New South Wales and is also Director of Bibliographic Information on Southeast Asia. Her background aside, the positions Jarvis has held at the ECCC do not give her any insight on most of the features of the ECCC she discusses.
- The Extraordinary Chambers, p. 420.
- For more on the French civil law system and the judges’ role in questioning the witnesses, see my previous post titled Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law.
- JCE, as defined by the ICTY Appeals Chamber in Tadić, is a distinct form of criminal liability of three types: a. The basic form (JCE I) ascribes individual criminal liability when “all co-defendants, acting pursuant to a common design, possess the same criminal intention … even if each co-perpetrator carries out a different role within it.” b. The systemic form (JCE II) ascribes individual criminal liability when “the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps; i.e., by groups of persons acting pursuant to a concerted plan.” c. The extended form (JCE III) ascribes individual criminal liability in situations involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common plan, is nevertheless a natural and foreseeable consequence of the effecting of that common purpose. See Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 196, 202, and 204. See also Prosecutor v. Vasiljević, IT-98-32-A, Judgement, 25 February 2004, para. 99.
- In 2010, Judge Shahabuddeen, who had been the Presiding Judge of the Tadić Appeals Chamber, stated that it was “an error” to have considered JCE to be customary international law. See Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise, in Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010). Judge Shahabuddeen further explained: “Joint criminal enterprise has roots in the common law and co-perpetratorship has roots in the civil law. Neither, considered with the problem of intent, can claim the status of customary international law. It is recognized that universality of support is not needed for the development of customary international law; generality approaching universality will do, depending on the particular situation. But in this case such generality of support is lacking: each of the two theories is supported by a considerable part of the world. That is not consistent with either theory being regarded as customary international law.” Id., at 188.
- Prosecutor v. Stakić, IT-97-24-A, Judgment, 22 March 2006, para. 62: “[T]he Appeals Chamber finds that the Trial Chamber erred in conducting its analysis of the responsibility of the Appellant within the framework of ‘co-perpetratorship’. This mode of liability … does not have support in customary international law or in the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers. By way of contrast, joint criminal enterprise is a mode of liability which is ‘firmly established in customary international law’ and is routinely applied in the Tribunal’s jurisprudence.” (internal citations omitted).
- The Extraordinary Chambers, p. 219; see also id., n. 95.
- Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Co-Prosecutors’ Appeal Against the Judgment of the Trial Chamber in Case 002/01, 28 November 2014. Since any decision in Case 002 may affect Case 003 and can have wider reaching effects, the Case 003 Defence requested to intervene in the matter, or in the alternative, sought leave to file an amicus brief that was annexed to the request. The request was denied, and thus the amicus brief was not placed on the case file. The amicus brief addresses the applicability of JCE III and – at the risk of being presumptuous – demonstrates that JCE III does not exist in customary international law and should not be applied at the ECCC. See also Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Case 003 Defence Request to Intervene in the Appeal Proceedings in Case 002/01 for the Purpose of Addressing the Applicability of JCE III at the ECCC or, in the Alternative, Request for Leave to Submit Amicus Curiae Brief on JCE III Applicability, 12 January 2015.
- The Extraordinary Chambers, p. 458, concluding, inter alia, that “[i]t appears that the implementation of the severance scheme has been more chaotic than necessary and some potential gains in expeditiousness have been squandered.”