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.
The knee-jerk reaction to every ruling in favor of a suspect or accused at the ECCC, however few and far between, is to claim political interference. Here that reaction gives voice in offensive, unsupported assertions that Prime Minister Hun Sen and the governing party, the Cambodian People’s Party, exerted pressure on the Co-Investigating Judges. The never considered flip side is that a decision not to proceed against Ms. Im Chaem is an act of judicial courage and intellectual integrity. Not that judges do not make mistakes or get things wrong, but considering the stakes in this case, the overwhelming and immutable public preconception that all suspects being investigated are guilty, guilty, guilty, and the invisible, but no less tangible, pressure to just indict and get on with the trial, conviction, and life sentence, this decision was courageous by any measure. And, not incidentally, it was correct.
One critic was one of my former interns on the Meas Muth defense. She posted on Facebook words to the effect that “Hun Sen has won the battle for the chambers. Case 3 and 4/2 to follow” and stated incorrectly that the teams in Cases 003 and 004 had made numerous filings on personal jurisdiction that had been rejected. This brought a swift reaction, resulting in the withdrawal of her message.
It is regrettable that a former intern would make such ignorant, irresponsible, and impugning remarks.
As an intern, she was cautioned not to discuss at any time matters that she may have come across while interning for the Meas Muth defense team. Interns parachute in and out of these highly complex cases, often arriving with preconceived notions about the facts of the case. They have usually read a book or two, seen a film, read a few news clips; foundation they believe for their certain knowledge of what actually happened during the Khmer Rouge period and how the ECCC is operating. Usually, they come to realize how ill-informed they are. Most have little or no experience in international criminal law and procedure, while those from common law systems tend to have little or no understanding of the French-based civil law system. And yet we tolerate their immature thought processes and embrace these young and eager legal eaglets, mentor them, try to immerse them in best practices, and above all, encourage them to be professionally and ethically vigilant.
So, it is with deep regret and embarrassment that I came to learn that such ill-conceived remarks issued from one of my carefully nurtured interns..
Much has been written about political interference
Those of us who have been in the trenches on Case 003 and Case 004 can attest to the intensity and tenacity with which the international Co-Investigating Judges have investigated these cases – especially International Co-Investigating Judge Michael Bohlander. I do not always agree with his decisions (or at least parts of them), and when I do not, I unhesitantly raise my objections before the appropriate venue – the Pre-Trial Chamber. What I can say, is that I have not seen the slightest indication that Judge Bohlander has ever, in any way, shirked his judicial responsibility or caved in to political pressure (and the internationals are no shrinking violets when it comes to applying pressure),(( See Michael G. Karnavas, Inducing Case 003 Outcome: US Purse Strings Wielded as a Whip, Cambodia Daily, 6 July 2016, wherein I asserted that the United States Senate is effectively engaging in political interference, impliedly calling on the co-investigating judges to indict my client, Meas Muth. Heather Ryan, a consultant to the Open Society Justice Initiative, responded to this commentary in Tribunal Is Tainted by Political Interference, but Not From US, published on 12 July 2016. For my response see Consultant’s Analysis of US Senate Bill Cherry-Picks Facts, Cambodia Daily, 13 July 2016.)) or opted for a course of least resistance.
Declaring that “Hun Sen has won” is tantamount to suggesting that the Co-Investigating Judges violated their oath to independently and impartially seek the material truth. A damnable insinuation.
It may not have been my former intern’s intention to impugn the integrity of Judges You Bunleng and Bohlander, but that is exactly what she did. Worse yet, she did so without having a clue about the facts, the investigative efforts made by the Co-Investigating Judges, the superb legal work of the Im Chaem defense team, or the International Co-Prosecutor’s persistence in not giving an inch on even the slightest legal or factual issue.
We all make mistakes. We are all susceptible to reaching conclusions without foundation. But more is expected of us and our interns when commenting about judicial decisions. We need to be exceptionally careful not to gratuitously cast aspersions out of ignorance or to impugn the character of judges when we disagree with the outcome of a decision.
Someday most of those interns will be practicing lawyers, subject to rules of professional conduct. Once fledged, my interns become independent actors, beyond the reach of my influence. Nonetheless, I am saddened that this time the lessons of confidentiality, discretion, fidelity to the client, critical thinking and respect for the judiciary did not have greater vitality.
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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?