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Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals

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. Continue reading “Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals”

Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court

ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court, by Emma Palmer, Cambridge University Press, 2020, 325 pages, $85.00

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, although they may also be relevant beyond the region. (p. 237)

When I first arrived in Cambodia in 1994 to train human rights advocates to act as public defenders for the Cambodia Defenders Project, followed by a year of training judges and prosecutors (1995-1996), foreigners working at NGOs and international organizations were beating the drums of accountability – raising the prospect of bringing to trial those responsible for the atrocities that had occurred before, during, and after the Democratic Kampuchea (DK) period. The NGO industry was flourishing. It was like the wild West with experts, much like out-of-town hired guns, offering their services – much of which I would say was half-baked at best. I rarely heard local Cambodians calling for trials or justice; the primary, if not exclusive, preoccupation was having a roof over one’s head, food on the table, and schooling for the children.

Back then Cambodia was much different, though some things, as in the rule of law, have remained the same. There were only a handful of Cambodian lawyers (mainly from abroad), no bar association, a medley of applicable criminal codes and procedures, an untrained and unsophisticated judiciary (ditto for prosecutors), ethically challenged police (highly corrupt), and an exhausted yet hopeful population looking to promising days ahead. Continue reading “Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court”

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)

It is with great relief to observe that the Pre-Trial Chamber reverses the prior order of the Co-Investigative Judges of 8 December 2009 that held JCE III applicable in relation to international crimes before the ECCC…. By the same token, the Pre-Trial Chamber declares JCE I and JCE II applicable before the court in regard to international crimes…. In doing so, the court omits to scrutinize the necessity to give these recognized forms of liability under international criminal law and in particular universal state practice law new labels.

Judge Wolfgang Schomburg(( Jurisprudence on JCE – Revisiting a Never Ending Story ))

Just as in the Wizard of Oz, when Dorothy discovers there is no wizard behind the curtain, the Pre-Trial Chamber Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – rebuffing the wizardry behind the curtain by thoroughly analyzing the law and jurisprudence relied on by the Tadić Appeals Chamber (and parroted by successive chambers at the ad hoc tribunals) – discovered that JCE III, founded on unsupportive and unpersuasive legal authority, did not enjoy customary international law (CIL) status. Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 3)”

JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)

The writer has referred to an error of the Tribunal, to which he was a party; it concerns the question whether joint criminal enterprise was customary international law insofar as it permits of a conviction without proof of intent…. [T]wo rival theories – joint criminal enterprise and co-perpetratorship – hold sway in major parts of the world, but not generally; neither is therefore entitled to be regarded as customary international law.

Judge Mohamed Shahabuddeen(( 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 Mohamed Shahabuddeen presided over the Tadić Appeals Chamber,(( Prosecutor v. Tadić, IT-94-1-A, Judgement, 15 July 1999, paras. 185-234 (Tadić Appeals Judgement). )) the progenitor of one of the most controversial legal issues at the ad hoc tribunals (the ICTY and ICTR) and elsewhere((Much has been written on the modes of liability and JCE. In particular, I recommend Gideon Boas, James Bischoff, and Natalie Ried, Forms of Responsibility in International Criminal Law: International Criminal Law Practitioner Library Series, (Cambridge University Press 2007); Ciara Damgaard, The Joint Criminal Enterprise Doctrine: A “Monster Theory of Liability” or a Legitimate and Satisfactory Tool in the Prosecution of the Perpetrators of Core International Crimes?, in Individual Criminal Responsibility For Core International Crimes 129 (Springer, 2008). See also William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England L. Rev. 1015 (2002); For more on my point of view, see Joint Criminal Enterprise at The ECCC: A critical analysis of two divergent commentaries on the Pre-Trial Chamber’s Decision against the application of JCE, available at http://michaelgkarnavas.net/files/JCE_at_the_ECCC_MGKarnavas.pdf.)) – the individual mode of criminal liability known as joint criminal enterprise (JCE), claimed to be a form of “commission” reflected in customary international law (CIL).(( The moniker joint criminal enterprise as an individual mode of liability has been variously and interchangeably labeled at the ICTY as “common criminal plan,” “common criminal purpose,” “common design or purpose,” “common criminal design,” “common purpose,” “common design,” or “common concerted design.” The common purpose has been more generally described to form part of a “criminal enterprise,” a “common enterprise,” and a “joint criminal enterprise.” See Prosecutor v. Brđanin and Talić, IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24.)) Continue reading “JCE Redux – THE KSC’S FIRST CONFIRMED INDICTMENT (Part 2)”

Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers

Late Saturday night, July 13, 2019, NagaWorld Hotel ballroom, Phnom Penh, Cambodia. Tables full, food and libations flowing, laughter, music, Khmer traditional dancers, speeches, clinking of glasses, cake-cutting, idle chatter, happy faces, kind words. It’s the graduation party for the newly-minted lawyers having passed the last of their exams after finishing an intensive Bar course. As I look around, I wonder if any of these young Lawyers can fathom a Cambodia with virtually no lawyers, no Bar Association – or BAKC (Bar Association of the Kingdom of Cambodia) as it is known, when at best there were some trained human rights advocates working for NGOs, offering their services to indigent suspects and accused in some parts of Cambodia. Probably not. But yes, there was such a time, and it was not that long ago. Continue reading “Reflections on the Cambodian Defenders 25 years later: from humble advocates to legal trailblazers “

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.¹

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”

https://www.scotland.org/features/the-history-and-words-of-auld-lang-syne [↩]

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”