EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals, by Craig Etcheson, Columbia University Press, 2020, 488 pages, $65.00
My central thesis in this work is that the law is at base an ideological enterprise, an ideology we can generally label as “legalism.” But – and this is crucial – the law is not a single, unified ideology. Rather, there are several different approaches to the concept of law, and we can see the animating principles underlying those different approaches in the way that war crimes tribunals are negotiated, operated, and concluded. I call these three approaches to law classical legalism, strategic legalism, and instrumental legalism. All three are long-standing, widespread, potent, and enduring. And the outcome of struggles among proponents of these different approaches determine much about how any particular war crimes tribunal ultimately unfolds.
The establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) is a complex story, beginning in the late 1970s and early 1980s as the atrocities taking place during the Democratic Kampuchea (DK) regime (1975-1979) became known. A show trial took place in August 1979. Pol Pot and my client, Ieng Sary, were held to account for all that had occurred. After the 1991 Paris Peace Agreement – which led to probably the fairest election in Cambodia’s history in 1993 – bringing to book the leaders of the DK regime and other responsible high-level Khmer Rouge cadre started to gain some momentum. Eventually, on 6 June 2003, an Agreement was hammered out between the Cambodian government, controlled by the Cambodian People’s Party (CPP), and the United Nations (UN).
Getting to this Agreement, what the parties (purportedly) understood to have agreed to, what emerged from this Agreement – i.e., the procedural framework of an international(ized) criminal tribunal or specialized chamber within a national court system, its jurisdictional contours and applicable law, its hybridity of personnel, personality, and their interactions (national and international) in making the ECCC happen, and how it has operated – is what EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals is all about.
In telling this story, Craig Etcheson, an old and well-regarded Cambodian hand, draws on his experience and knowledge both as an outsider, in trying to nudge along the establishment of a legitimate process to meaningfully bring justice to the victims of the DK regime (no indication he concerned himself with the victims of the Nixon administration’s Operation Menu that secretly carpet-bombed parts of Cambodia), and as an insider, during his years as an analyst for the international component of the ECCC’s Office of the Co-Prosecutors (OCP).
Etcheson’s account of the establishment of the ECCC is exceptionally detailed, measured, and instructive – perhaps the most comprehensive rendition to date. This section alone makes EXTRAORDINARY JUSTICE a worthy read. His analysis of the proceedings, however, from my personal experience and knowledge (which, admittedly, may be colored having been on the defense) is somewhat wanting: a mix bag ranging from fair renditions to one-sided/fact-selective accounts, to glairing errors and omissions. Yet, despite my criticisms (more later), even this section is informative and highly instructive to those wanting to have a better understanding of what has been going on at the ECCC, but more importantly, to those who may be involved in designing future international(ized) criminal tribunals – especially if modeled after the French civil law system. Where I think Etcheson falters (perhaps not if viewed from a social science perspective) is in his introduction and conclusion where he attempts to pigeon-hole what transpired during the negotiations establishing the ECCC and its operations, in order to validate his thesis – ascribing his notion of the three types of legalism in explaining the ECCC’s legacy, as it were.
As an “engaged scholar” of the DK regime, Etcheson learned during his quarter-century-long quest to hold the Khmer Rouge leadership and others to account that seemingly simple words such as truth, justice, and law are complicated. They mean different things to different people and getting them to agree can be “exceedingly complicated and time-consuming.” Latching on to the word “law” as the springboard into setting out his thesis on “legalism” as its linchpin, he attempts to establish that with law being an ideological enterprise with no unified ideology, different approaches to the concept of law influence how international(ized) criminal tribunals are negotiated, operated, and concluded.
Having discovered the vagaries of words such as “truth” and “law” and how getting to “justice” through judicial processes is a complex endeavor muddled by different understandings and appreciations of the rule of law, how it should be applied, as well as by the different agendas and objectives of the negotiating parties to an international(ized) criminal tribunal, Etcheson rightly observes that ultimately all these variables influence the character of the proceedings and the quality of the results. However, in attempting to unpack the legacy of the ECCC within the framework of his thesis, or shall I say conceptualization and compartmentalization of legalism, Etcheson enthusiastically strives, to a fault, to put a square peg into a round hole. As interesting as his thesis may sound from a social science perspective (looking for patterns and coining labels), he misses the mark when neglecting that legalism is a legal principle (though he occasionally uses it as such).
Etcheson’s three types of legalism
In a brief introduction, Etcheson claims there are three types of legalism – classical, strategic, and instrumental. Proving his initial point that seemingly simple words can actually be complicated, meaning different meanings to different people, Etcheson uses the term “legalism” in ways that may be acceptable for a social scientist. He affixes labels to concepts intended to inform of a novel approach of identifying or interpreting a concept but ignores that legalism in the legal field is a term of art with a fairly accepted definition or a reasonable appreciation of what this term entails and is used for, subject to the legal tradition in which it is being applied.
Classical legalism: This is the type of legalism where the judges, as the “high priests,” along with other devotees found in the courts, the halls of academia, the UN Office of Legal Affairs (OLA), and international human rights organizations separate and subordinate politics to the law. In other words, judges decide on the basis of preexisting law and procedure, as opposed to legislating from the bench. In this context (not always consistently applied in drawing conclusions from examples), Etcheson is talking about the principle of legality. It might come as a surprise to him that not all judges or legal academics strictly adhere to the principle of legality, as I’ve noted here, here, here, and here.
Strategic legalism: Here is where politics trumps the law when convenient. Coexisting in a flexible relationship where the law is unable to address a policy decision, strategic legalism calls for the reinterpretation of the law to achieve policy objectives. The practitioners here are the ministries or organs implementing government policies, or diplomats crafting compromises to achieve agreements between sovereigns, or as in the case of the ECCC, the UN Secretariat. “Seen in this way, strategic legalism intersects with the vagaries of policy making.” In other words, adopting a process tailored to achieving a pre-ordained goal. Labelling this political maneuvering as a form of legalism is a political science tool to give legitimacy (as opposed to legality) to politically driven policies and agendas, such as opportunistically ensuring that certain actors, for certain events, during certain periods are immune from prosecution in negotiating the temporal and personal jurisdiction of the tribunal.
Instrumental legalism: Here the law is subordinate to political priorities and whims, “becom[ing] infinitely malleable in order to serve the interests of power, party, or class.” Adherents to instrumental legalism tend to be authoritarian regimes, where the law is used perversely to serve desired policies or legal outcomes. In other words, the law is used in ways to justify the regime’s actions and claim legality (as in the application of the rule of law and the principle of legality) to what is otherwise by any rational thinking, an illegality cloaked in rhetoric of legality.
I must confess, I have never thought of the law as an ideological enterprise. Perhaps I am deeply uninformed. As a simple defense lawyer with no learned post-nominal letters, I have never come across the legalism trinity of classical, strategic, and instrumental, identified by Etcheson. And, unless my confusion has gotten the best of me, it seems that Etcheson occasionally either conflates or uses interchangeably his understanding or conceptualization of what he claims as classical legalism with the well-established principle of legality.
I don’t fault Etcheson for attempting to coin a conceptual phrase to fit a set of circumstances or behavior. He emulates historian Peter Maguire, who, in unpacking the establishment and operation of the Nuremberg trials, coined the phrase (I hesitate to call it a “concept”) “strategic legalism,” which I will discuss more below in dealing with Etcheson’s take on the negotiations establishing the ECCC. Yet, I find confusing the way he uses the term legalism and his articulation of its different forms in claiming they are reflected in his narrative on the founding of the ECCC and its operations – not to mention utterly unnecessary to his otherwise astute observations and conclusions offered in EXTRAORDINARY JUSTICE.
Etcheson’s take on the negotiations establishing the ECCC
After laying out his thesis, Etcheson spends roughly the first half of EXTRAORDINARY JUSTICE dealing with the behind-the-scenes efforts, conflicts, machinations, uncoordinated interventions, and inconsistent messaging in negotiating and setting up the ECCC, an Odyssey lasting over a couple decades. Etcheson excels here, offering a compelling narrative, masterly assembled from primary and secondary sources, including interviews. Despite overly relying on his notes of interviews (as he often does with David Scheffer, a US/UN diplomat who by craft and ambition is not beyond embellishment and revision), Etcheson gives us a solid framework from which we can judge the past and be informed for the future.
During the initial decade, what we see is a reluctance both at the national and international level to deal with atrocities of the DK regime. In one word, realpolitik. Domestically, the Cambodian government was overwhelmed with domestic issues, not to mention the ongoing conflict at the Cambodian-Thai border from which Khmer Rouge forces would launch attacks. At the international level, the UN, the US, China, and the USSR/Russia had blood on their hands. Setting up a tribunal where all the dirty laundry would hang out to air was a non-starter. As for the second decade, say in the mid-1990s when the UN, US, and other countries began to express an interest in prosecuting the Khmer Rouge, again, realpolitik came into play – not legality.
For domestic reasons, the Cambodian government (after the 1997 events leading to preeminence of the CPP, which is still the governing party today), wanted legitimacy, respectability, and international affirmation of its commitment to the rule of law, including International Criminal Law (ICL). Realpolitik was at play, though there were other practical reasons. It was not until 1996 when factions of the Khmer Rouge began to defect and be coopted by the Cambodian government. Ultimately, with the elderly Khmer Rouge leadership viewed as spent and ineffectual, lower-level commanders with their battle-tested faithful cadre would cause major disruption to the peace and stability of Cambodia, whose economic growth was heavily reliant on foreign investment and tourism.
As for the internationals, realpolitik was equally at play. Just as in the Nuremberg trials, there were some glaring omissions on what events should be prosecuted, for example, the US’s bombing of civilian populations with no military value (think of Dresden, Hiroshima, or Nagasaki). The temporal jurisdiction would need to be limited to the period between the day Phnom Penh fell to the Khmer Rouge (along with the rest of Cambodia) and the day Phnom Penh fell to the joint Vietnamese-Cambodian forces (the Cambodian forces being Khmer Rouge defectors). This would, among other things for instance, shield the US from having to account for the thousands of civilian deaths during its carpet-bombing campaign or any of its involvement in Cambodia between 1979 until circa 1989.
Anyone sophisticated in Cambodian’s recent history and political environment, such as Etcheson, would have been aware that neither side of the negotiating table was interested in full accountability. And it would have been naïve to assume that somehow the Cambodian government – with all it had gone through and its open animus toward the UN – would simply accede to agendas not in sync with the CPP’s. What ultimately emerged as the ECCC was doomed from the start, if the intention were to have a model court that would function independent any influences and vagaries of the Cambodian government, the UN, and the donors who would finance it.
But perfection or pure justice was not expected or even desired. Nor is it attainable as we know from judging the operations and results of other international(ized) criminal tribunals. It was fairly accepted that whatever the ECCC might be able to accomplish would be relatively within the margins of acceptability, adhering more or less to the principle of legality through a procedure that gave the Cambodian side the upper hand in deciding who would be investigated and prosecuted. Hans Corell, a seasoned lawyer and international civil servant of considerable relevant experience who headed the negotiations for the UN OLA, thought otherwise, and by many accounts has been proven right.
Etcheson’s research points out how the international side was not just outplayed, but how it outplayed itself with too many interveners in the negotiating process. He concludes that the UN OLA fought hard to establish a tribunal based on classical legalism, where law would be separated from politics, but ultimately what emerged was a tribunal that was catered to or driven by instrumental legalism, in no small measure because of the external pressure brought to bear by the US, France, Japan, and others, all too willing to engage in strategic legalism.
The UN Secretary General, Kofi Annan, and Hans Corell of the UN OLA wanted to establish an international(ized) criminal tribunal that would meet the high international standards expected of other tribunals applying ICL, such as the ad hoc tribunals and the ICC. But when it became apparent that what the UN had in mind and what the “Cambodian powers” (the CPP, effectively, as referred to by Etcheson) wanted was a gap too far to bridge, outside powers (namely the US, France, Japan, and others) forced the matter to the UN General Assembly, where it would appear that the decision to set up a tribunal tailored to the demands of the Cambodian powers was all but predetermined.
What eventually emerged was the ECCC, with a procedure that on its face could not (as it did not) meet the high international standards to which the UN OLA was insistent on for affixing the UN’s imprimatur. Baked into the procedure were modalities that would obviously create the sort of quagmire and uncertainty presently seen at the ECCC in relation to cases where suspects were not named prior to agreeing to the ECCC’s establishment (they could not, given the principle of the presumption of innocence). You could say that the Cambodian powers opportunistically took advantage of the eagerness of the UN and the internationals to hold trials to further their own goals, which, to a reasonable degree, coincided with those of the internationals. Just as opportunistically, however, the internationals were fine with some justice for the victims, however imperfect, as opposed to none. Thrown under the bus to make the ECCC happen as finally agreed were the UN Secretary General Kofi Annan and Hans Corell of the UN OLA, and with them, their aspirations and efforts to establish a tribunal of high international standards that would not be controlled by or operate under the whims of the Cambodian powers.
Etcheson impressively informs on the negotiations, properly showing that the UN OLA was really interested in the process as opposed to who and how many suspects would be prosecuted. In other words, the UN OLA was concerned with procedural justice, not just substantive justice. Etcheson claims this proves his thesis that the UN OLA, as well as the international judges and prosecutors (which he covers in the second half of the book), adhered to classical legalism since they concerned themselves with pre-existing rules. I don’t get the connection; international judges and prosecutors have not shied from twisting the principle of legality into a pretzel to get around international standards when it suited their needs. Here Etcheson conflates, mixing the intent of the UN OLA and the actions of the international components of the OCP, Office of Co-Investigating Judges (OCIJ), and the Chambers.
Whether the Cambodian powers adhered to instrumental legalism, where the law becomes “infinitely malleable in order to serve the interest of power, party, or class,” is subject to dispute – at least when it comes to the ECCC. Aside from taking exception to the claim that there is such a thing called instrumental legalism, there were legitimate reasons why the Cambodian powers were concerned about having a tribunal set up in Cambodia that would be under the control of internationals.
Etcheson’s take on the ECCC’s operations
Etcheson spends the second half of EXTRAORDINARY JUSTICE discussing the ECCC’s operations. While he gets many things right with rich detail, he also gets many things wrong, or simply omits key facts – though I am prone to think that this is not intentional but more the product of trying to manage the length of his narrative.
Despite having worked for years as an OCP analyst, Etcheson does not quite have a handle on the civil law system. This would have benefited him in his analysis and conclusion of how the ECCC civil law-based procedure operated, and more importantly, whether the adjustments made to the procedure and the manner in which the procedure actually functioned provided the high standards to which the ECCC claimed it would adhere from its inception.
That aside, Etcheson tends to credit all the good things to the international components of the OCP, OCIJ, and to a lesser extent, the Chambers, when assessing the operation of the ECCC during the first two cases, Cases 001, and 002. It is as if the national side did nothing but obstruct and delay, when, in fact, things are more nuanced. The one thing that Etcheson gets right is , showing how early on the internationals attempted to run roughshod over the nationals, presenting them with what they thought would be faits accomplis only to be rudely reminded by the Cambodians that they were equal under the ECCC framework and would not just adopt or go along with whatever was conjured up by the internationals. In other words, Etcheson misses the point that in such a setting as Cambodia and considering the local culture and traditions, it is necessary to make genuine efforts to engage the local counterparts, so that when say the Internal Rules were being drafted, the Cambodian side should have been in the room from the very beginning and throughout the entire process.
Etcheson, not being a lawyer, also seems to ignore or just fails to appreciate, the need for strictly adhering to the procedures and abiding by ethical constraints. For instance, he sees nothing wrong with his friend Stephen Heder – whom he hyperbolically (and wrongly) claims to be the “the world’s leading academic authority on the Khmer Rouge” – working for the OCP to help draft the first introductory submission (the charging document for what would later be severed into Cases 001 and 002), before being transferred to the OCIJ, where he would be responsible for investigating the facts in the introductory submission he helped to draft (see my request for his disqualification here). Heder also had written a book prejudging who should be prosecuted, conveniently titled Seven Candidates for Prosecution. Granted, Heder was not a judge. But given his language skills, his knowledge of the events, his biases, etc., and the heavy reliance on him the French International Co-Investigating Judge (“ICIJ”), Marcel Lemonde, would have in making sense of the thousands of documents and myriad of personalities and events, can it realistically be said that this is classical legalism as understood by Etcheson?
Etcheson poo poos just about everything done by the defense, expressing almost shock at the temerity of some, such as yours truly, who, on behalf of my client Ieng Sary, filed some 500 submissions challenging everything deemed necessary and at all levels. On its face it seems extreme, but when considering that this was the first case, when much of the jurisprudence and procedural rules needed to be tested, and that the architects of the ECCC designed a tribunal with four layers, is it not within a defense lawyer’s due diligence obligation to make all necessary and reasonable challenges? That one team (not mine) was involved in a rupture strategy is accurate. That team’s theory of defense was that the ECCC was illegitimate and the proceedings unfair. Rupture is not my style and generally it is ineffective, but a sound theory which does not go to rupture strategy – delegitimizing the results of a trial by showing that the proceedings are unfair – is proper. How this theory and strategy is executed through the tactics employed is another matter. In any event, it seems that Etcheson misapprehends vigorous defense strategies with rupture strategy, and here is where I think he misses the boat.
If the trial proceedings were occasionally chaotic or subpar in strictly adhering to the ECCC framework, a good amount of credit goes to the international judges who often just stood by or joined in such perverse behavior as the President of the Trial Chamber cutting off the defense lawyers’ microphones during the trial (see here, p. 9). Another example is when I attempted to record my client’s inability to follow the proceedings because of the medication he was taking, and rather than do the right thing and suspend the proceedings, the Chamber threatened me by email (see here, paras. 16-22). There are countless examples which show that the internationals were all too willing to be coopted by their national counterparts, and in effect, greenlight behavior which they knew to be inconsistent with the high international standards they claimed to be affording the accused.
Also (I am trying to keep it short), Etcheson is way off in his views of what was negotiated with respect to the category of “most responsible.” He claims that the ICIJ Marcel Lemonde put a numerical bar at 1000, meaning anyone who might have been responsible for 1000 deaths from 1975 to 1979 would fall into this category, whereas, inexplicably, for the German ICIJ, Michael Bohlander, 20,000 deaths would alone be insufficient to land a suspect in the category of “most responsible.” Aside from ICIJ Lemonde plucking a number out of thin air without regard to the negotiating history, Etcheson does a great disservice by taking two CIJs’ Closing Order dismissing Case 004/01 out of context to pointlessly denigrate ICIJ Bohlander. When it comes to who should be prosecuted, Etcheson is inclined to pay lip service to what was agreed upon when the ECCC was established but seems to intimate that most responsible is synonymous with most available.
I’ll stop there.
Wrapping it up
Etcheson’s claim that the result of the negotiations establishing the ECCC “was a court open to the influence of Cambodia’s executive, as is provided for by the nation’s ‘procedural force’” is on the mark. He rightly observes that the Cambodian powers with their own objectives, had a different understanding of justice – but then this would have been obvious had greater efforts been made to understand the Cambodian powers, and to proceed with more sensitivity to, and appreciation of, the fact that more was in play than that which appeared on the surface. Here I am reminded of Emma Palmer’s astute observations in ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court, applicable especially to Cambodia:
Principles of sovereignty, related fears of international interference or selective prosecutions, a preference for domestic proceedings, the influence of other states such as the United States, and the existence of other priorities – including development and threats to stability arising from armed conflict – are all features of the debate about international criminal justice in Southeast Asia.
The objectives of the great powers (the US, UK, France, China, and Russia) were also not in sync with those of the UN Secretariat and the UN OLA, with the various interveners and interlopers being all too accommodating to compromise of the tenants of classical legalism (a half of a loaf is better than none) and pay lip service to such fundamental principles of having an independent tribunal, staffed by independent judges and prosecutors operating within a procedure designed to uphold the highest international standards applied in other established international(ized) criminal tribunals. Etcheson remarks on this point are telling:
The goods that both sides want are primarily symbolic in nature. The nationals want to generate symbols that will buttress their international political legitimacy and domestic historic legacy while preserving the hard-won gains Hun Sen’s “win-win” policy, which succeed in bringing the Thirty Years War to an end. The internationals want to generate symbols that will further develop and instantiate a transitional system of liberal democratic justice, and further advance the jurisprudence of international humanitarian law and international criminal law.
Etcheson is entirely correct in concluding that the Cambodian powers were using the establishment of an international(ized) criminal tribunal – and the way it would need to operate for it to serve the objectives of the Cambodian powers – as a symbol. Why he thinks this is indicative of legalism of the instrumental milieu is perplexing. I can understand legalism, in the sense of claiming something to be legal, that is, based on the rule of law and adhering to the principle of legality, but it is absurd to claim that the efforts by the Cambodian powers to game the system is any form of legalism – even if what was achieved is a semblance of justice for some victims. Of course, there might have been other agendas at play as well, which, presumably, would fall into Etcheson’s category of strategic legalism. But more to my point, labeling something as having the force of a form of legality to mask over a distortion and perversion of what legality stands for by affixing a label to it, such as instrumental, is not just inventive, but also misleading.
In the second half of the book, Etcheson displays an obvious prosecution-driven misapprehension of many of the strategies and tactics of the various defenses, in part, because of his inability to fully grasp the nettles of the role played by the defense in international(ized) criminal tribunals and his predisposition to assuming that vigorously pursuing all available lines of defense must, ineluctably, be the workings of a rupture strategy. This shortcoming, along with his predilection for skipping over any deficiencies of the international components of the OCP, OCIJ and Trial Chamber in the ECCC’s first two cases, paints a distorted picture of how the ECCC truly operates, obscuring some valuable and useful lessons. But it is Etcheson’s attempt to fit his legalism thesis to the facts, first on the negotiations of the ECCC and second on the operations of the ECCC, that detracts from what is otherwise an admirable effort to tell the ECCC’s story, albeit prior to what is likely to be an unhappy completion.
Despite what I find fault in Etcheson’s social scientist’s views on legalism and other irritating shortcomings when recounting the operations of the ECCC in the second half of the book, he is to be commended for his valuable insight and input to the historical narrative on the establishment of the ECCC, its function, and its contribution to the development of ICL offered in EXTRAORDINARY JUSTICE. It is an important addition to some of the other books written on the ECCC (see here and here), which, subject to my criticism, I strongly recommend.
An Aside
I was sitting at the outdoor canteen at the ECCC in the outskirts of Phnom Penh in mid-December 2007. It felt like 40 degrees Celsius (104 Fahrenheit), though it was probably only around 33 degrees. Having just arrived in the country only a few hours earlier after nearly 20 hours of traveling from The Hague, my brain felt as if it were being microwaved, as sweat poured down my face, my clothes sticking to my body, leaving me clammy all over – a feeling that reminded me that I was back in humid Southeast Asia, back in Cambodia. It was my first day at the ECCC, having just been selected by Ieng Sary, the Deputy Prime Minister and Minister of Foreign Affairs of the Khmer Rouge (or DK) government to represent him as his International Co-Lawyer.
Just as I sat down with my bowl of Kuyteav, Cambodian noodle soup normally eaten for breakfast, I am greeted by an old acquaintance, Craig Etcheson. I first met him on a summer evening in 1994, at one of the usual expat watering holes, the FCC (Foreign Correspondents’ Club). Over the years we had run into each other, periodically discussing the events of the DK period and the possibilities of prosecuting those responsible before an international(ized) criminal tribunal. I had read his Rise and Demise of Democratic Kampuchea and had found it interesting – though on a second read, after having a more sophisticated understanding of the historical events, I found some of it deeply flawed, and had told him as much, suggesting that he might consider revising it.
Etcheson had spent the better part of a quarter of a century doggedly pursuing the establishment of a Nuremberg-like tribunal. We had talked about this over the years whenever by chance we happened to meet. And now here he was, in the flesh, smiling and upbeat, happy as the cat that got the cream, working for the international component of the ECCC’s OCP.
After exchanging pleasantries, he started grumbling about things he found strange in the civil law system and the need to conduct trials with all the theatrics of a dog and pony show for the public (meaning a procedure where the entire DK narrative could be developed and displayed in an adversarial/party-driven manner), he casually lets me know that the OCP was enthusiastically promoting Joint Criminal Enterprise (JCE), in all its forms, as a mode of liability. Saying nothing of how I felt about JCE (see here, here, here, and here), I prodded him to explain the OCP’s/his reasoning and how it could be applied when it was not enshrined in the ECCC framework – the Agreement and Establishment Law (which together provide the ECCC’s statutory framework) and Internal Rules (the ECCC’s rules of procedure and evidence). He happily did, leading me to conclude that I needed to act fast.
The investigation of the first case before the ECCC concerning Kaing Guek Eav alias Duch (Case 001) was nearly completed. Were the CIJs to accept JCE as an applicable mode of liability at the ECCC, knowing that Duch had confessed and his trial would in fact be a drawn out theater of a change of plea proceeding (in civil law systems, at a minimum a shortened trial is necessary even if an accused wants to plead guilty; see here and here), then we would be stuck with JCE, never having had a fair opportunity to challenge it as a mode of liability not reflected in either customary international law or the ECCC framework.
After this serendipitous encounter, I decided we needed to intervene in Case 001. What followed was a request being filed with the CIJs against the application of JCE before the ECCC. Being the first salvo, it had to stop the CIJs in their tracks on JCE – at least in Case 001. A victory would only buy us time, but time necessary to fight JCE in Case 002 where we would have standing. But how to make the request get the CIJs’ attention, to pause, and to take a pass on JCE? That is when we decided we needed to not only spell out why JCE was not applicable, but what it entailed and who may be caught into the web as members of the JCE – such as numerous prominent members of the governing party, going as high as the Prime Minister, Hun Sen. It worked.
Years later Etcheson would accuse me of having engaged in a rupture strategy with this filing.
About Author
Thanks for this, Michael. Your perspective is quite thought provoking. It seems I presumed correctly when I told you that I thought you would find this to be of interest. Cheers!
Sounded familiar! Recalling some even suggested publicly right before the commencement of the ECCC that judges and prosecutors after their appointments should work together to create rule(s) before talent lawyer (like Michael G. Karnavas) could challenge the proceedings (not to quote exactly but you know what I meant).
I read Extraordianry Justice rather differently than you. As a layman with a long interest in the Khmer Rouge and particularly its relations post 1980 with the West (and Canada foremost), Mr. Etcheson’s book read very well as a primer on international law and its application. His thesis on the three forms of law, classical, strategic and instrumental, as he defines them, oriented and prepared me for what was to come. Without his expostion on instrumental law, much of the legal manoeuvering that comprised the second half of the book would have been incomprehensible for readers like myself.
Given the dangers of writing about other cultures, Mr. Etcheson avoided the worst pitfalls without resorting to cultural relativism. But certainly as you argue in your review, and I can affirm this from my own experience, Western law is not the edifice of classical legalism that it purports to be. Mr. Etcheson in his discussion of the Nuremberg trials also says so much.
In his exposition of his thesis, Mr. Etcheson prepares the Western reader for an inevitable culture clash. He puts the Cambodian legal and political system in a larger context that serves the reader indeed braces the reader for the otherwise seeming alien world of instrumental law that prevails in much of the East.
Given his personal investment in the outcome of the tribunal, Mr. Etcheson writes a rather dispassionate account of events that elsewhere invite hyperbole. Instead, we are asked to follow the thread of a story spanning decades and comprised of the wheeling and dealing of myriad characters more or less dedicated to a same outcome but willing to subvert the process when it serves their ends. As a Canadian with some minor political experience, I best understood the part of the book where American politicians are lobbied to keep justice for the Khmer on the agenda. Insofar as the self interest of an incumbent politician in reelection served genocide justice, we are priviliged to live in a democracy however flawed.
For me what was most troubling in the tribunal was the fact that nations that aided and abbetted the Khmer Rouge in the 1980s sat in judgement of their former client. This, of course, is another book and one I understand Mr. Etcheson is researching. The pursuit of justice for Democratic Kampuchea’s victims did not end with the Extraordinary Tribunal. It continues and will only end when Mr. Pol Pot’s supporters in the West are called to account.