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.

At the center of the controversy is a simple yet loaded question that has far-reaching consequences for all concerned: whether the suspects (potential future accused) deserve their full fair trial and procedural rights as guaranteed by the Cambodian Constitution and incorporated in international legal instruments such as the UDHR and the ICCPR?

The CIJ unequivocally answered YES. Issuing a redacted public Decision, the CIJ allow us to glean their thinking, and in no small measure, we can see some of the behind-the-scene efforts made by the CIJ to ensure respect of the fundamental fair trial and procedural rights of the suspects without compromising the duties and rights of the Prosecution and the Civil Parties. We also get a sense of the CIJ’s thinking on the numerous insinuations and accusations about the political motivations behind any permanent stay of the proceedings; the product of operating under a shadow of political interference.

Before venturing into the Decision, some general remarks may be helpful – though to get the full flavor of the Decision, flavorful as it is, I recommend reviewing the linked sources.

Whipping up a storm

The CIJ issued their Request for submissions confidentially. Minutes later it (or at least the substance) was leaked to the press and others. I know, because I was on the receiving end of solicitations for quotes about the Request and verification of the substance of the Request. Frankly, this should have been anticipated. The enormity of the impact of a stay, to borrow from the CIJ, was bound to trigger a cascade of reactions, so a leak was inevitable; it is naïve to think otherwise. In any event, once the substance of the Request was leaked, accusations and innuendo followed. The specter of political interference has hovered over the investigative process in Cases 003, 004, and 004/2 from the very beginning, though primarily limited to the national side of the Office of the CIJ (see here and here). But with the Request coming from both CIJ, it now seemed to some that the international side had been co-opted. Those crying interference are now thoroughly convinced the fix was in.

The critics and commentators either did not see the Request and were going off what they had been told, or were only exposed to discrete – cherry-picked – portions at the exclusion of vital contextual information provided in the Request.

Compounding this hue and cry was the fact that some of these critics and commentators from respected civil society organizations had little or no appreciation for the sui generis nature of the ECCC, but in particular the civil law nuances of its procedure, and – as we now are briefly informed – the fact that behind-the-scene efforts were made by the CIJ to inform, discuss, reason, and resolve with the UN and the Principal Donor Group (PDG) an issue that the CIJ justifiably saw as alarming: the impact of the budgetary situation in Cases 003, 004, and 004/2. Not to be a spoiler or give away too much, one specific comment during the meeting with the PDG insinuated that the defence lawyers were delaying the proceedings, a common refrain when the progress of the proceedings is not going as planned. The CIJ assured the meeting that that was not an issue in investigations. And at the risk of sounding overly partial (full disclosure, I am the International Co-Lawyer in Case 003), some critics and commentators saw this as an opportunity to press their narrative of just how guilty the suspects in these cases are and why they deserve to be convicted, sentenced, and incarcerated.

Thanks to the Decision, we now know that many of the stakeholders chimed in, such as the UN, the PDG, the Special Expert of the Secretary General (SESG), and, I would also venture to say, donor states individually through their diplomatic representatives.  We still do not have the entire picture, but the redacted public Decision does reveal much of the missing context and nuance that some of the critics and commentators lacked before forging ahead in intimating that a stay of the proceedings by the CIJ would be proof positive of political interference and/or a dereliction of their judicial duties.

Resuming the calm before the prospective storm    

The CIJ deferred deciding on whether to stay the proceedings pending further developments: that the future funding of the ECCC in relation to Cases 003, 004, and 004/2 must be viable, matching the Court’s requirements. Viewed differently, the CIJ, among other things, is hinting, big-time, that they are not entirely convinced that as things stand with the current and future funding of the ECCC, the judicial independence, fairness, and integrity of the proceedings will not be under threat, amounting to a fundamental breach of the fair trial rights of the suspects and potential accused who are currently under investigation. Put even differently, the UN, PDG, and others responsible for securing the funds to meet the budgetary needs of Cases 003, 004, and 004/2, better get their act together, and soon – or else.

The Decision is relatively short and succinct. The CIJ cogently summarize the positions taken by the parties, most notably that the Defence teams support the stay, the Civil Parties and the National Co-Prosecutor expressed no views, and the International Co-Prosecutor (ICP) argued that the CIJ’s consideration is unsound and that they have no authority to issue the stay, which, were they to do so would be ultra vires. Though, the authority relied upon by the ICP, when viewed in context and completely (as the CIJ did), undercuts the ICP’s argument.

As for the stakeholders, other interlocutors (such as SESG David Scheffer, who in my opinion is partial to the Prosecution and, having carried water for the US as the former US Ambassador at Large for War Crimes Issues, is hardly like Caesar’s wife, above suspicion), and commentators who offered input or engaged in armchair polemics on the legitimacy of the CIJ’s authority and integrity in issuing a stay of the proceedings, the CIJ suffers no fools, minces no words, takes no prisoners.

And rightly so. Hard for sitting judges to repel innuendo, false facts, and distorted legal claims without jeopardizing the integrity of the investigation, without revealing confidential information, and without jumping into the public arena and risking being seen as partisans as they swat away rumors, half-truths, misperceptions, and lies. The best they could have done, and they did so, is to issue press releases; hardly the most effective vehicle to counter allegations of political interference and judicial irresponsibility lodged by the likes of Open Society Justice Initiative. The Decision gave the CIJ a proper vehicle to dispel the myths and to counterattack these purveyors of doom and gloom, these false prophets who champion fair trial rights in theory but not in practice, if it is likely to result in an undesirable result, one that benefits the suspect or accused.

The CIJ addressed the need to maintain confidentiality and why they believed the Request should not have been issued as a public document. In principle, I agree with their concerns and legal reasoning. However, in my experience over the past decade of practicing before the ECCC, time and time again, confidentiality has often been used to cover up inconvenient truths – such as when there was the massive corruption scandal at the ECCC where the national staff was being shaken down to kick back portions of their salary to who knows whom. Regrettably, these cover-ups have fostered within the ECCC a culture of leaking in order to expose wrongs, perceived wrongs, to win public opinion, and to discredit or embarrass. In any event, the legal reasoning provided by the CIJ for issuing the Request as a confidential document, for the need to maintain confidentiality, and for the leaks to stop is solid. Given that the functions and responsibilities of the CIJ are modeled after French legal proceedings – the investigations are by their very nature confidential. That said, I doubt if the leaks will stop.

I could go on about the Decision. It offers plenty to dissect and discuss. It is also highly pedagogical, and, as decisions go, a pleasant read. Since it is relatively short (just over 19 pages), even were I to do justice to the CIJ by summarizing and commenting on their Decision, I think it is far more profitable to go over it as publicly released. No doubt there will be no shortage of critics and commentators, and the press, as usual, will provide its version through casual summaries and pithy soundbites from the illuminati (see, for example, here). Which is why I will refrain from commenting any further and urge you to read the Decision and form your own opinion. See this also as an opportunity to learn from a well-written, soundly-reasoned, and cogently-presented judicial decision.

Another decision is likely to follow; the prospective storm is yet on the horizon.


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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