MYOPICALLY “REASSESSING” THE ECCC’S LEGACY: Same Tune, Different Lyrics

Rather than merely increasing the technocratic proficiencies of Cambodian legal professionals, the ECCC has instead modeled how to leverage such expertise to construct more convincing legal façades to provide cover for decision-making processes wholly determined by power and political interests. Importantly, key Cambodian lawyers and judges at the ECCC have done so by seizing on the ambiguous term “most responsible” in the Court’s constitutive documents, interpreting it in an inconsistent manner that conveniently conforms to the publicly stated views of the CPP, thereby borrowing a page from the CPP’s playbook of manipulating vague legal provisions. Not only has this produced incongruent outcomes in cases against similarly situated accused, but participating in the process has enhanced the capacity of relevant Cambodian legal actors who worked for the Court to more artfully engage in similar tactics domestically.

Randle C. DeFalco, Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal, 45 U. Pa. J. Int’l L 549, p. 560.

DeFalco’s conclusion is based on emotional reasoning masquerading for rational legal analysis. In failing to objectively assess the law, DeFalco displays a profound lack of appreciation of the basic tenets of the Rule of Law, including the principle of the presumption of innocence and the procedural system in place at the ECCC.

Michael G. Karnavas, A Response to Defalco’s: The Proper Interpretation of “Most Responsible” at the ECCC

Reading Randle C. DeFalco’s latest polemic on the legacy of the Extraordinary Chambers in the Courts of Cambodia (ECCC) – Reassessing the Rule of Law Legacy of the Khmer Rouge Tribunal – reminded me of Ronald Reagan’s famous quip “There you go again”. Reagan was responding to what he believed was a repeated misrepresentation of his position by President Jimmy Carter during a debate. Commenting on DeFalco’s 2014 article Cases 003 and 004 at the Khmer Rouge Tribunal: The Definition of “Most Responsible” Individuals According to International Criminal Law, I found his analysis wanting and his conclusions the product of a result-oriented approach. Ten years later DeFalco is at it again. Continue reading “MYOPICALLY “REASSESSING” THE ECCC’S LEGACY: Same Tune, Different Lyrics”

War Crimes and the Meaning of Genocide: A conversation with war crimes lawyer Michael Karnavas.

Michael G Karnavas spoke with The Diplomat’s Luke Hunt about the meaning of genocide and the legal precedents established in Cambodia, including the relatively new charge of aggression, which is reserved for crimes committed by those holding the highest levels of power.

Listen to the interview here.

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Cambodia Needs a Genocide Museum

Published in the Diplomat 2 February 2024

Cambodia Needs a Genocide Museum

By Michael G. Karnavas
February 03, 2024

An artistic rendering of the planned Sleuk Rith Institute, as envisioned by late architect Zaha Hadid. Credit: Image courtesy of DC-Cam

Continue reading “Cambodia Needs a Genocide Museum”

Karnavas publishes paper on reparations to Khmer Rouge victims through sustainable health care

Remedying Victims Of Khmer Rouge Crimes With Sustainable Healthcare Through Reparations Or Transitional Justice Principles

By Michael G. Karnavas

Michael G. Karnavas was commissioned by the Documentation Center of Cambodia (“DC-Cam”), funded by USAID, to examine and propose healthcare as a means of reparation’s to victims of the Khmer Rouge. His paper was published 11 May 2022.

Victims of large-scale human rights violations have a fundamental right to reparations grounded in the Universal Declaration of Human Rights and international human rights treaties such as the International Covenant on Civil and Political Rights. Unfortunately, rarely, if ever, are mechanisms adopted and implemented that would meaningfully redress the victims. The Cambodian victims of the violations of human rights committed during the Democratic Kampuchea (“DK”) period of 1975 to 1979 – many of whom were admitted as Civil Parties participating in proceedings at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) – are no different.

Although virtually the entire population was severely traumatized during the DK period, formal mental healthcare services for the survivors, as well as others, have been either lacking or woefully inadequate to meet demand. The ECCC – which was established by an Agreement between the United Nations and the Royal Government of Cambodia to “brin[g] to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations” in Cambodia between 17 April 1975 and 6 January 1979 – can only award non-compensatory and symbolic reparations.

Given this gap, DC-Cam has been advocating that Cambodia and the international community can and should do more to repair victims of the Khmer Rouge atrocities. As part of DC-Cam’s ongoing initiative to implement a program that sustainably supports the health and welfare of survivors, this paper explores: (a) to what extent providing healthcare services for DK period victims fits within the reparations frameworks of the international(ized) criminal courts and tribunals, including the ECCC; and (b) whether absent such possibilities, healthcare services should be provided as part of a transitional justice package designed to help Cambodian society sustainably deal with the legacy of the DK period.

Concluding that the reparations frameworks of international(ized) criminal courts and tribunals and the ECCC show that providing healthcare services as a reparations measure is effectively unrealizable, this paper provides recommendations on implementing a sustainable healthcare initiative in Cambodia as a transitional justice measure and presents further areas for exploration.

Interested in hearing Michael’s pull-no-punches observations about the ECCC and its legacy? Pour yourself a glass and settle back to listen to this wide-ranging interview he gave DC-Cam.

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BOOK REVIEW: NO SELL DEAD – A Tale of Cambodia

NO SELL DEAD – A Tale of Cambodia, by James Jennings, Molecular Press, 2018, 240 pages, $ 15.00

Don’t underestimate the exhaustion of simply surviving a regime like Democratic Kampuchea. You are physically spent, but mentally and spiritually drained as well. The mind has no time for complications, dual loyalties, cover stories, anything like that. (p. 238)

Lukas Bellwether had a career behind him as an international criminal lawyer. Not such a long career, but long enough to have set himself up with London’s world consultants and experts who get invited to international legal gatherings. Dermott Vann was a senior conference interpreter. This was not the first time that the two friends had met for dinner during a global congress.

Thus, we are introduced to the protagonist and one of the many multi-dimensional characters in this Cambodian crime fiction, which is as multifaceted as Cambodian culture itself. As for the story, here’s a tease: The not-so-extraordinary international criminal lawyer Lukas Bellwether runs into Dermott Vann, a senior interpreter, at a conference in Yangon. Bellwether, who at this stage of his career is more of a conference lecturer (self-importantly fancied as consultant – another one of those canny nuances), is there to make a presentation. Vann is there to interpret. When they occasionally meet at conferences, they customarily indulge in drinks and dinner to catch up. Only this time, Vann unexpectedly goes into convulsions as they stroll the streets of Yangon. Death by poison. Bellwether is off to find the truth. Continue reading “BOOK REVIEW: NO SELL DEAD – A Tale of Cambodia”

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”

Happy STL Begging Games! And may the odds be in justice’s favor

‘Mr. Limbkins, I beg your pardon, sir! Oliver Twist has asked for more!’

‘FOR MORE’ said Mr. Limbkins. ‘Compose yourself, Bumble, and answer me distinctly. Do I understand that he asked for more, after he had eaten the supper allotted by the dietary?’

‘He did, sir,’ replied Bumble.

‘That boy will be hung’ said the gentleman in the white waistcoat. ‘I know that boy will be hung.’

Oliver Twist, Charles Dickens

Due to the severe financial situation currently facing the Special Tribunal for Lebanon (STL), on 3 June 2021, Trial Chamber II canceled the commencement of the Ayyash trial scheduled for 16 June 2021. It also suspended all decisions on filings presently before it, and any future filings, until further notice. Mr. Salim Jamil Ayyash is charged with five counts, including acts of terrorism in relation to three attacks against prominent Lebanese political figures, Mr. Marwan Hamade, Mr. Georges Hawi, and Mr. Elias El-Murr, carried out on 1 October 2004, 21 June 2005, and 12 July 2005 respectively, connected with the terrorist attack that killed former Lebanese Prime Minister Rafik Hariri.

Poor thing, the STL. The inevitable has arrived. After years of being on an extravagantly gluttonous diet, the STL, with cap in one hand and bowl in the other, is forced to beg for more funds so it can carry on. Whether the STL should have been set up in the first place (I think not) is debatable, though it cannot complain that it has not had sufficient time and resources to carry out its mandate.

What does not seem debatable, however, is its failure to live up to the hype of those who promoted its creation and the expectations of those funding it. With the deepest of sympathies to the victims, the STL has proved to be an expensive, unrewarding, and ill-conceived boondoggle. Perhaps this is a watershed moment, an exquisite time to re-think whether the STL should declare victory and close its doors (revisionist legacy narrative to follow). Continue reading “Happy STL Begging Games! And may the odds be in justice’s favor”

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)”