The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law<\/strong><\/em>, Simon M. Meisenberg and Ignaz Stegmiller (Eds.), T.M.C. Asser Press, 2016.<\/p>\n The Extraordinary Chambers in the Courts of Cambodia (ECCC) is a court that was established in 2006 within the existing court structure of the Kingdom of Cambodia to bring to trial senior leaders of Democratic Kampuchea (DK) and those who were most responsible for the crimes and serious violations of Cambodian penal law and international humanitarian law, custom, and the international conventions recognized by Cambodia, committed from 17 April 1975 to 6 January 1979.(( Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (\u201cECCC Law\u201d), 27 October 2004, Art. 1.)) The ECCC was established by an agreement between the Royal Government of Cambodia (RGC) and the United Nations (UN) on 6 June 2003 (UN-RGC Agreement),(( Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003 (\u201cUN-RGC Agreement\u201d). )) after protracted negotiations that lasted several years.<\/p>\n For those who may not be acquainted with what is going on at the ECCC, a few words about its proceedings and achievements to date.<\/p>\n Thus far, the ECCC has completed one trial, Case 001 (limited to Kaing Guek Eav, alias \u201cDuch,\u201d the former Chairman of S-21, the notorious Security Center also known as Tuol Sleng). Case 002 was severed by the Trial Chamber in 2011 right before the trial was about to commence. The ECCC is about to complete the first part of Case 002 (which deals with the senior leaders, only two of whom remain alive \u2013 Nuon Chea and Khieu Samphan; Ieng Thirith was found to be incompetent to stand trial and has since passed away, while Ieng Sary, my former client, passed away during the trial). The ECCC Supreme Court Chamber will issue its judgment in Case 002\/01 on 23 November 2016. Currently, the Trial Chamber is well under way in trying Case 002\/02, while the Office of the Co-Investigating Judges is actively investigating Cases 003 and 004, an investigation that started in 2009.<\/p>\n Against this backdrop, Simon M. Meisenberg, a former Legal Advisor to the ECCC, and Ignaz Stegmiller, a former Legal Advisor to a human rights organization in Cambodia, have put together an impressive text on the ECCC, The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law<\/a> <\/em>(The Extraordinary Chambers<\/em>).<\/em>\u00a0 This is the second book specifically on the ECCC, a fine complement to the first one, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia<\/a><\/em> (Hybrid Justice<\/em>), written by two well-placed Cambodian hands, John D. Ciorciari, an Assistant Professor at the University of Michigan, and Anne Heindel, a Legal Advisor to the Documentation Center of Cambodia and avid analyst of some of the most critical decisions in Cases 001 and 002.<\/p>\n First, a few words about Hybrid Justice<\/em>\u2019s contributions to our understanding of the ECCC.<\/p>\n In Hybrid Justice<\/em>, Ciorciari and Heindel look at the history of the negotiations in establishing the ECCC and the jockeying for advantage between the UN and the RGC which, aside from distrusting each other, from the outset had different visions on how the court should be structured, the procedure it would apply, where it should be located, how it should be funded, and so on.\u00a0 Insightfully, Ciorciari and Heindel link the negotiating process and the resulting structure and procedure of the ECCC with the proceedings and jurisprudence.<\/p>\n Aside from analyzing the negotiating process and the emerging decisions (primarily dealing with the procedures and internal rules adopted by the judges), Ciorciari and Heindel also conducted extensive interviews with those most impacted by or involved in the day-to-day decisions issued by the various ECCC Chambers. These interviews provided grist for the mill, adding a crucial dimension to their analysis and making Hybrid Justice<\/em> a perspicacious read for anyone involved in setting up future ad hoc<\/em> or hybrid courts. Hybrid Justice<\/em> also exposes the weaknesses in adopting a French-modeled civil law system, and the hazards of fashioning the procedure by adding, sometimes haphazardly or without appreciation, adversarial modalities from other international(ized) courts.<\/p>\n The Extraordinary Chambers<\/em> also provides a brief sketch of the ECCC\u2019s history and explores its procedural weaknesses, though mostly from an abstract conceptualization of the proceedings. Its 20 chapters range from the 2003 UN-RGC Agreement, to an analysis of some of the most important jurisprudence of the ECCC, to its potential legacy contribution to international criminal law and procedure. The book is divided into three parts.<\/p>\n Part I deals with the issues of the ECCC\u2019s establishment, independence, and legacy.\u00a0 The chapters in this Part provide a perspective on the ECCC negotiations and the challenges of political interference and judicial independence.\u00a0 In addition, Part I contains a historical account of early attempts at prosecutions and the ne bis in idem <\/em>principle, a Cambodian perspective on the expectations toward the ECCC, and the related challenges and accomplishments.<\/p>\n Part II goes on to consider the legacy of the ECCC with respect to substantive international criminal law. The chapters in this second Part contain interesting contributions that analyze the approach of the ECCC regarding crimes against humanity and war crimes, sentencing and the principle of legality, issues of jurisdiction, and modes of liability, in particular, Joint Criminal Enterprise (JCE). Contributors provide critical assessments of the ECCC\u2019s jurisprudence related to the interpretation of genocide, forced transfer, sexual and gender-based crimes, and grave breaches perpetrated against protected persons and property.<\/p>\n Part III concentrates on the ECCC\u2019s contributions to international criminal procedure. The chapters in this Part introduce the reader to the specifics of the ECCC\u2019s structure, which was influenced by the French civil law system but with added peculiarities from adversarial systems and \u201ccreative\u201d modalities which the judges have come up with and adopted into the Internal Rules.(( For a critical analysis on adopting of the Internal Rules, see <\/em>G\u00f6ran Sluiter, Due Process and Criminal Procedure in the Cambodian Extraordinary Chambers<\/em>, 4 J. Int\u2019l Crim. Just. 314-326 (2006). )) Contributions to this Part also explore the ECCC\u2019s jurisprudence on expeditious trials, the standards related to the fitness of the accused to stand trial, the admissibility of torture-tainted evidence, and victims\u2019 participation.<\/p>\n The Extraordinary Chambers<\/em> is well organized and very informative \u2013 mostly in the descriptive sense. The subjects covered are weighty and relevant, providing a more than cursory overview.\u00a0 From an insider\u2019s point of view, having practiced before the ECCC since 2008, the chapters tick all the relevant, significant, and controversial boxes, and are relatively solid, well researched, and balanced.\u00a0 Rather than deal with all 20 chapters of the book, I will focus on four chapters that I found particularly interesting but were either slightly wanting or exceptionally good.\u00a0 Full disclosure: consider the source of this critique; I am currently the International Co-Lawyer for Meas Muth in Case 003, having previously represented Ieng Sary in Case 002.<\/p>\n One chapter that left me unsatisfied was Dr. Helen Jarvis\u2019s Trials and Tribulations: The Long Quest for Justice for the Cambodian Genocide<\/em>.\u00a0 Setting aside part of the title of her chapter (she, among others, most notably Alex Hinton,(( When Hinton testified before the Trial Chamber in Case 002\/02, he indicated that in his work he does not use the legal definition of genocide, but \u201ca much broader definition of genocide [that] refers to the intention to destroy a group because of who they are.\u201d Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/TC, E1\/401.1, 14 March 2016, English ERN 01217257. See also Alexander Laban Hinton, Why Did They Kill? (University of California Press, 2005). )) has an expansive \/ non-statutory interpretation of what constitutes genocide), Jarvis disappoints because she is parsimonious in matters where she has much-valued inside knowledge, while excessive in matters where her knowledge and experience are peripheral.\u00a0 Jarvis is well acquainted with Cambodia and Cambodian politics, having lived in-country for decades. She is reputed to be an advisor to His Excellency Sok An, Deputy Prime Minister of the RGC, and the primary negotiator for the RGC in its dealings with the UN on the establishment of the ECCC.\u00a0 In her 2004 book Getting\u00a0Away\u00a0with Genocide?<\/em> (co-authored with journalist Tom Fawthrop), she gives a comprehensive though arguably skewed account of the events leading up to the establishment of the ECCC, presumably to square with the narrative of the Cambodian People\u2019s Party (CPP), Cambodia\u2019s governing party since the demise of DK. \u00a0Her book, for all its worth, was published before the ECCC was up and running, and before she had an opportunity to experience the functioning of the ECCC from the inside, having served as the Chief of the Public Affairs Section from the inception of the ECCC in 2006 until 1 June 2009, and thereafter as the Head of the Victims Support Section until 30 June 2010. Jarvis\u2019s treatment of the negotiations is cursory at best, offering scant insight on what exactly was negotiated, particularly concerning who fits under the heading \u201cmost responsible,\u201d and whether this is a discretionary issue to be determined by the Co-Prosecutors and Co-Investigating Judges, or whether it is a jurisdictional issue subject to judicial review. This issue remains contentious, and on occasion, has generated comments from the Cambodian government that have been interpreted as political interference.<\/p>\n Jarvis could have provided much needed insight given her involvement in and proximity to the negotiations.\u00a0 Instead, she devotes more than 22 pages of her 30-page article to the key features of the ECCC, a subject better suited for a legal scholar or practitioner.(( Jarvis holds a PhD in Indonesian Studies and her work experience has not been in the legal field; she was Head of the School of Information, Library & Archive Studies at the University of New South Wales and is also Director of Bibliographic Information on Southeast Asia. Her background aside, the positions Jarvis has held at the ECCC do not give her any insight on most of the features of the ECCC she discusses.))<\/p>\n Overall, Jarvis does a yeoman\u2019s job in describing the features of the ECCC misses the mark by serving a bland, almost uncooked, dish on the establishment of the ECCC.\u00a0 Considering her unique role in the negotiating process, coupled with her experience at the ECCC and the benefit of following its evolution over the years, Jarvis could have offered much more to our understanding of the ECCC\u2019s establishment.<\/p>\n Another chapter that I found somewhat unsatisfying (not to be confused with inadequate, for it is anything but) was Sergey Vasiliev\u2019s Trial Process at the ECCC: The Rise and Fall of the Inquisitorial Paradigm in International Criminal Law?<\/em>\u00a0 It is not for want of examining the key aspects of hybridity of the ECCC procedure that Vasiliev mildly disappoints.<\/p>\n Vasiliev generally picks up many of the procedural quirks and calamitous offshoots from the ECCC\u2019s mashing and mixing of procedural systems. However, his analysis at times borders on the apparent; viewed through a purely theoretical prism with little appreciation of the practical.\u00a0 Dissecting a decision, especially one that deals with procedure, requires a fair amount of appreciation of the practical applications of the decision. Such appreciation generally comes from actual practice, or, as was done by Ciorciari and Heindel, by conducting extensive interviews with those who have first-hand experience and are impacted by decisions on procedural issues.<\/p>\n I particularly found strange Vasiliev\u2019s claim that \u201c[e]xpecting the trial judges and their staff to master the case file to a degree that would equip the judges for a lead role in respect of proofing-taking was unrealistic.\u2026 Besides, \u2026 the judges must resolve a wide array of matters before the trial can start and are not in a position to devote full time to the examination of the dossier.\u201d(( The Extraordinary Chambers<\/em>, p. 420.)) If so, then what is the sense of adopting the French civil law system?\u00a0 Judges are expected to know the dossier before the trial begins. They are the ones who decide which witnesses will be heard and in which order.\u00a0 And by not having familiarized itself with the dossier, the Trial Chamber not only delegated its authority to the prosecution \u2013 which generally led the witnesses to suit its case and not in any objective truth-seeking fashion as would be expected of the judges \u2013 but also managed to adopt an asymmetrical procedure that effectively favors the prosecution. \u00a0Whereas the prosecution does a classical adversarial direct examination, the defense is limited to confronting witnesses through non-leading questions.\u00a0 As for the judges, their questioning has also come under fire from the defense<\/a><\/u>. \u00a0Not to mention, if judges are not familiar with what is in the dossier and have better things to worry about, then how will they be in a position to meaningfully and objectively question the witnesses?(( For more on the French civil law system and the judges\u2019 role in questioning the witnesses, see <\/em>my previous post titled Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B \u2013 Civil Law.<\/a><\/em>))<\/p>\n Though Vasiliev identifies many of these procedural quirks and provides us with a thoughtful conclusion, it seems obvious \u2013 to me at least \u2013 that he would have benefited a great deal had he taken the time to interview some of the insiders from the Chambers, prosecution, defense, and civil parties.\u00a0 Overall, however, Vasiliev\u2019s chapter delivers.<\/p>\n There are two chapters that deserve honorable mention: Lachezar Yanev\u2019s The Theory of Joint Criminal Enterprise at the ECCC: A Difficult Relationship<\/em> and Anne Heindel\u2019s Managing Enormous Mass Crimes Indictments: The ECCC Severance Experiment.<\/em><\/p>\n Yanev\u2019s treatment of the ECCC\u2019s decision on JCE is superb. The ECCC found that JCE III \u2013 the extended version of JCE((JCE, as defined by the ICTY Appeals Chamber in Tadi\u0107<\/em>, is a distinct form of criminal liability of three types:\u00a0 a. The basic form (JCE I) ascribes individual criminal liability when \u201call co-defendants, acting pursuant to a common design, possess the same criminal intention … even if each co-perpetrator carries out a different role within it.\u201d b. The systemic form (JCE II) ascribes individual criminal liability when \u201cthe offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps; i.e., by groups of persons acting pursuant to a concerted plan.\u201d c. The extended form (JCE III) ascribes individual criminal liability in situations involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common plan, is nevertheless a natural and foreseeable consequence of the effecting of that common purpose. See Prosecutor v. <\/em>Tadi\u0107<\/em>, IT-94-1-A, Judgement, 15 July 1999, paras. 196, 202, and 204. See also <\/em>Prosecutor v. Vasiljevic\u0301, <\/em>IT-98-32-A, Judgement, 25 February 2004, para. 99.)) \u2013 does not exist in customary international law, contrary to the jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY), from which JCE sprung. We now know \u2013 thanks to former ICTY Judge Mohamed\u00a0Shahabuddeen coming clean((In 2010, Judge Shahabuddeen, who had been the Presiding Judge of the Tadi\u0107<\/em> Appeals Chamber, stated that it was \u201can error\u201d to have considered JCE to be customary international law. See <\/em>Mohamed Shahabuddeen, Judicial Creativity and Joint Criminal Enterprise<\/em>, in <\/em>Judicial Creativity at the International Criminal Tribunals 202-03 (Shane Darcy & Joseph Powderly, eds., Oxford University Press, 2010). Judge Shahabuddeen further explained: \u201cJoint criminal enterprise has roots in the common law and co-perpetratorship has roots in the civil law. Neither, considered with the problem of intent, can claim the status of customary international law. It is recognized that universality of support is not needed for the development of customary international law; generality approaching universality will do, depending on the particular situation. But in this case such generality of support is lacking: each of the two theories is supported by a considerable part of the world. That is not consistent with either theory being regarded as customary international law.\u201d Id.<\/em>, at 188. )) \u2013 that JCE, as it was first decided in Tadi\u0107<\/em>, is fiction.\u00a0 And, as a result, we now also know that the ICTY Appeals Chamber was less than candid when it said in Staki\u0107<\/em> that to have applied the co-perpetration mode of liability (as was done by the Trial Chamber presided over by Judge Wolfgang\u00a0Schomburg) would have been ultra vires<\/em>, since only JCE was beyond doubt customary international law.(( Prosecutor v. Staki\u0107, <\/em>IT-97-24-A, Judgment, 22 March 2006, para. 62: \u201c[T]he Appeals Chamber finds that the Trial Chamber erred in conducting its analysis of the responsibility of the Appellant within the framework of \u2018co-perpetratorship\u2019. This mode of liability \u2026 does not have support in customary international law or in the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers. By way of contrast, joint criminal enterprise is a mode of liability which is \u2018firmly established in customary international law\u2019 and is routinely applied in the Tribunal\u2019s jurisprudence.\u201d (internal citations omitted). ))<\/p>\n The ECCC Pre-Trial Chamber (PTC) was the first Chamber to pay no attention to the wizardry behind the curtain and to thoroughly analyze the cases and other jurisprudence that supposedly supported JCE III as a mode of liability under customary international law.\u00a0 As in the Wizard of Oz when Dorothy discovers there is nothing behind the curtain, the PTC judges found them to be unpersuasive and untenable. Mythology.\u00a0\u00a0<\/em><\/p>\n Yanev\u2019s analysis is thorough and exacting. He cogently shows why the PTC and later the Trial Chamber were right in rejecting JCE III \u2013 no small feat since the judges at the ECCC have been prone to overly, and sometimes improperly, rely on ICTY jurisprudence.\u00a0 Yanev also points out, correctly, that the Trial Chamber, though it adopted the PTC decision on JCE III, relied on jurisprudence from the Special Court for Sierra Leone (SCSL) to erroneously hold that the common plan, design, or purpose of a joint criminal enterprise \u201cmust either have as its objective a crime or contemplate the crimes as the means of achieving this objective.\u201d(( The Extraordinary Chambers<\/em>, p. 219; see<\/em> also id.<\/em>, n. 95. )) Yanev goes through the cases the SCSL relied on and convincingly shows that the ECCC Trial Chamber went too far: the common purpose elements should be criminal; participating in a non-criminal common purpose that merely results in the commission of crimes does not support a prima facie<\/em> case of JCE I.<\/p>\n Yanev\u2019s article should be added to the JCE essential reading list.\u00a0 Hopefully, the ECCC Supreme Court Chamber will not reverse course; the Office of the Co-Prosecutors (OCP) filed an appeal concerning JCE III,(( Case of NUON Chea et al.,<\/em>\u00a0002\/19-09-2007-ECCC\/SC, Co-Prosecutors\u2019 Appeal Against the Judgment of the Trial Chamber in Case 002\/01, 28 November 2014.\u00a0 Since any decision in Case 002 may affect Case 003 and\u00a0can have wider reaching effects, the Case 003 Defence requested to intervene in the matter, or in the\u00a0alternative, sought leave to file an\u00a0amicus\u00a0<\/em>brief that was annexed to the request. The request was\u00a0denied<\/a>, and thus the amicus<\/em> brief<\/a> was not placed on the case file. The\u00a0amicus\u00a0<\/em>brief addresses the applicability of JCE III and \u2013 at the risk of being presumptuous<\/em> \u2013 demonstrates that JCE III does not exist in customary international law and should not be applied at the ECCC.\u00a0\u00a0See also Case of NUON Chea et al.<\/em>, 002\/19-09-2007-ECCC\/SC,\u00a0Case 003 Defence Request to Intervene in the Appeal Proceedings in Case 002\/01 for the Purpose of Addressing the Applicability of JCE III at the ECCC or, in the Alternative, Request for Leave to Submit\u00a0Amicus Curiae<\/em>\u00a0Brief on JCE III Applicability<\/a>, 12 January 2015.)) though the Supreme Court Chamber has yet to decide whether the OCP\u2019s appeal is admissible, since it wasn\u2019t relevant to Case 002\/01.<\/p>\n Anne Heindel does an excellent job of distilling and dissecting the ECCC\u2019s colossal misstep of severing Case 002 into mini-trials. On its face, severing Case 002 seemed a brilliant stroke of judicial management of an unmanageable leviathan of a case.\u00a0 However, the Trial Chamber\u2019s reasons for severing the case were tenuous and inconsistent.\u00a0 In a public interview<\/a>, Judge Cartwright candidly admitted that Case 002 was severed to cheat death from taking the octogenarian accused before they were tried (and found guilty; the verdicts seemed pre-ordained even before the accused were arrested).<\/p>\n Heindel\u2019s in-depth knowledge of the ECCC\u2019s procedure and jurisprudence, her up-close and in-person observations of the proceedings, and her insight from her extensive interviewing of ECCC insiders for Hybrid Justice<\/em>, serves her well in teasing out the nuances associated with the severance decision. She is thorough yet measured in her analysis and criticisms of this decision.<\/p>\n During the launch of The Extraordinary Chambers<\/em> in Phnom Penh on 19 October 2016, which I attended, Meisenberg called the severance decision \u201ccourageous.\u201d Reading Heindel\u2019s exegesis on this decision (and what has ensued since), \u201ccourageous\u201d is not a word that comes to mind.\u00a0 I would characterize it as \u201chalf-baked.\u201d\u00a0 The severance was a huge waste of time and resources, and has complicated immensely the proceedings in Case 002\/02 \u2013 all of which Heindel deftly notes with clarity.(( The Extraordinary Chambers<\/em>, p. 458, concluding, inter alia<\/em>, that \u201c[i]t appears that the implementation of the severance scheme has been more chaotic than necessary and some potential gains in expeditiousness have been squandered.\u201d)) Being familiar with Case 002, I venture to say that but for the severance of the trial proceeding (and some other daft procedural matters that are covered in various chapters of The Extraordinary Chambers<\/em>), Case 002, in its entirety, would have been long over by now.\u00a0 Heindel\u2019s chapter is a must-read on trial management for judges and their staff at courts with hybrid proceedings.<\/p>\n Some final remarks.<\/p>\n![\"meisenbergstegmillerfrontcover\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2016\/11\/MeisenbergStegmillerFrontcover.jpg?ssl=1\")
<\/a>Book Review<\/strong><\/p>\n
\n<\/a>Whereas Hybrid Justice<\/em> drills down on the formation and structure of the ECCC and provides valuable insight into how future hybrid courts should be negotiated, financed, and structured (systemically and procedurally), Meisenberg and Stegmiller provide a tour d’horizon<\/em> that informs the unfamiliar reader and stimulates those of us who practice or have practiced at the ECCC, or have followed the proceedings. The Extraordinary Chambers<\/em> is a valuable contribution to anyone interested in international criminal law and procedure and its continuing development in areas such as gender-based crimes and victim \/ civil party participation in the proceedings.<\/p>\n<\/a>