(Editors’ note: This article is the first of our coverage of the ECCC following its final verdict. The second article may be found here.)

On Sept. 22, the Extraordinary Chambers in the Courts of Cambodia (ECCC) rendered the summary of its last substantive judgment in Case 002/02 – its most complex and second case to date – against Kheiu Samphân, the former Head of State of Democratic Kampuchea. Case 002/02 is also ECCC’s last case and while it is important in its own right (and will be the subject of its own article, forthcoming), this article addresses the decision(s) by the ECCC to drop the prosecution of the remaining suspects in Cases 003 and 004. Thus, the Supreme Court Chamber’s (SCC) Appeal Judgment in Case 002/02 signals the end of the ECCC’s prosecution of those responsible for the crimes committed during the 1975-1979 Khmer Rouge rule when one-fifth of Cambodia’s population (almost 2 million people) perished.

Besides Cases 001 and 002, the ECCC in its early stages envisioned at least two more cases: Cases 003 and 004. However, the procedural impasse at the Chambers, stimulated by domestic politics and played out through the tactics of ECCC’s national component, brought 13 years of investigations and procedure in Cases 003 and 004 – kept alive mainly due to ECCC’s default mechanism (see Judge Maureen Harding Clark, dissenting opinion, para. 8) – to an (unjust and unjustifiable) dead end: termination in “the absence of a definite and enforceable indictment.”

The ECCC’s three judgments in Cases 001 and 002 have delivered some degree of justice to Cambodia’s people who watched the trials en masse: between 2009 and 2015 alone, over 165 thousand Cambodians attended the trials, which, as the U.N. Special Expert David Scheffer noted:

“exceeds the total number of spectators for the Nuremberg and Tokyo military tribunals after World War II, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, and the International Criminal Court, combined.”

As the ECCC begins to wind down, its focus is shifting into working with the survivors, public education, and enforcement of its sentences. However, with the main criminal proceedings now closed due to persistent domestic political resistance, the Chambers’ legacy remains mixed.

Background

The ECCC was established in 2006 and became fully operational in 2007 with the adoption of its Internal Rules. The ECCC was a result of a decade-long negotiation between the Cambodian government and the U.N., which began after Pol Pot, the Khmer Rouge’s leader, died in 1998. The Agreement between the U.N. and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea (the Agreement) was signed in 2003 and entered into force in 2005. The Agreement created a hybrid internationalized tribunal that would be part of the Cambodian judicial system and was composed of both Cambodian and foreign judges. The U.N.’s vision to create Extraordinary Chambers with a majority of international judges in each Chamber and a single international prosecutor yielded to Cambodia’s proposal for a majority of Cambodian judges in each of the Chambers.

The ECCC is composed of an office of co-investigating judges (one Cambodian and one foreign), an office of co-prosecutors (one Cambodian and one foreign), a Pre-Trial Chamber (three Cambodian and two foreign judges) that settles the differences between the co-investigative judges and/or the co-prosecutors, a Trial Chamber (with three Cambodian and two foreign judges), and the SCC (with four Cambodian and three foreign judges). The supermajority vote rule, that was introduced into the negotiations by U.N. Member States (see 2003 Report to the General Assembly, p. 9), allows the Pre-Trial and the Trial Chambers to decide only with the affirmative vote of at least four judges, while a decision by the SCC requires an affirmative vote of at least five out of seven judges.

Cases 001 and 002: Three Convictions, Two Imprisonments

In 16 years of its operations, the ECCC charged five individuals: Kaing Guek Eav, alias “Duch” (Case 001), Ieng Sary (Case 002), Ieng Thirith (Case 002), Nuon Chea (Cases 002, 002/01 and 002/02) and Khieu Samphân (Cases 002, 002/01 and 002/01). Duch, the former Deputy and then Chairman of security center S-21, a notorious interrogation center, was convicted of crimes against humanity and grave breaches of the Geneva Conventions of 1949 and sentenced to a life imprisonment in 2012.

Ieng Sary, Ieng Thirith, Nuon Chea, and Khieu Samphân were charged together in Case 002. Ieng Sary, the former Deputy Prime Minister of Democratic Kampuchea, died in 2013. Ieng Thirith, Sary’s wife and the former Minister of Social Affairs of Democratic Kampuchea, was declared unfit to stand trial in 2012, and the proceedings against her were stayed. She died in 2015.

Both Nuon Chea, the former Deputy Secretary of the Communist Party of Kampuchea, and Khieu Samphân, were convicted in Case 002/01 for crimes against humanity and sentenced to life imprisonment. The Trial Chamber convicted the duo also in Case 002/02 for genocide against the Vietnamese and Cham populations, crimes against humanity, and grave breaches of the Geneva Conventions of 1949. Nuon Chea died shortly after the Case 002/02 Trial Judgment in 2019. Khieu Samphân, at age 91, is already serving his life imprisonment handed down in Case 002/01. The SCC’s 002/02 decision does not change Khieu’s prison sentence.

Cases 003 and 004: No Definite and Enforceable Indictment

The decision in Case 002/02 is the last to be delivered against an accused by the ECCC, although the ECCC investigated four more individuals: Meas Muth, the former Commander of the Navy Division (Case 003); Yim Tith, Deputy Secretary and Acting Zone Secretary, responsible for 27 security centers in Northwest Zone (Case 004); Im Chaem, the former alleged Preah Net Preah District Secretary and Northwest Zone Sector 5 Deputy Secretary, responsible for a number of security centers (Case 004/01); and Ao An, the second highest ranking member of the Communist Party of Kampuchea in the Central Zone (Case 004/02). The outcome against all suspects investigated in Cases 003 and 004 was the same: termination of the proceedings in the absence of a definite and enforceable indictment.

In Cases 003, 004 and 004/02, the co-investigating judges issued strikingly opposite closing orders: the national co-investigating judge dismissed the charges for lack of personal jurisdiction, while the international co-investigating judge indicted the suspects for genocide, crimes against humanity, war crimes, and homicide. (See also Scheffer’s analysis of Case 004/02.) In Case 004/01, the co-investigative judges agreed on dismissing the case; however, the international co-prosecutor disagreed and appealed to the Pre-Trial Chamber, which was unable to decide with supermajority. This led to an impasse and subsequent dismissal of the case.

Unlike Cases 001 and 002, Cases 003, 004, and 004/02, as the Center for Justice & Accountability has noted, “target individuals who are still affiliated with the current Cambodian government.” For example, in 2011, the international co-investigating judge Siegfried Blunk initiated Contempt of Court proceedings against the Cambodian Minister of Information and, per his statement, resigned after Cambodia’s statements that “Cases 003 and 004 ‘will not be allowed … [and that the international staff] should just pack their bags and leave.’” Similarly, his successor, Laurent Kasper-Ansermet, reported the interference into investigation in Case 004 to the Cambodian criminal prosecution and alleged that the national co-investigating judge engaged in “serious interference with the conduct of the judicial investigation in Case Files 003 and 004.” Further alleging “a highly hostile environment and [that he] was severely impeded in the day-to-day performance of his duties,” Kasper-Ansermet resigned in 2012.

The Example of Case 004/02

Although they are different cases, the outcomes of Cases 003, 004 and 004/02 are the same: termination of proceedings on procedural grounds. (As noted above, Case 004/01 differs slightly; however, the final result – absence of definite and enforceable indictment – was the same.) The flowchart below demonstrates how the ECCC in Case 004/02 arrived at the conclusion that there is no definite and enforceable indictment against Ao An, who was investigated for over 13 years for genocide and crimes against humanity, among others, i.e., with the help of national judges’ statements unsupported by reasoned opinions and/or lack of notification of the case to the Trial Chamber:

Flowchart of decision-making process in referenced legal case

Investigations against Ao An began before 2008. The co-prosecutors disagreed from the very beginning on the status of the case: the national co-prosecutor advocated for the dismissal of the case, while the foreign co-prosecutor pressed charges for genocide, crimes against humanity, and war crimes.

The national co-prosecutor’s position, issued in a form of a statement, was that:

  1. the suspects were neither senior leaders nor those most responsible;
  2. the Agreement and ECCC Law envisaged the prosecution of a limited number of people; and
  3. the Tribunal’s mandate could be adequately fulfilled through the prosecution of the accused persons in the ECCC Detention Facility (e., suspects in Cases 001 and 002).

In her dissent, (now former) SCC Judge Clark wrote that the national co-prosecutor’s narrative was “based on a factual foundation which is shaky in fact and unsupported by law”; it was nevertheless adopted by the national judges, who on all levels of the proceedings blocked the orders to investigate and to indict Ao An.

Interpretation of the Agreement and the ECCC Law and ECCC’s jurisprudence, does not support the national prosecutor’s proposition.

First, the national co-prosecutor was at liberty to decide that the suspects were neither senior leaders nor the most responsible. However, her dismissal lacked any reasoning and a factual basis. (See e.g., Judge Clark, dissenting opinion, para. 68.)

Neither the Agreement nor the ECCC Law defines the phrase “senior leaders or those most responsible.” The SCC has stated that this phrase represents “investigatorial and prosecutorial policy to guide the independent discretion of the Co-Investigating Judges and Co-Prosecutors.” (SCC Case 001, para. 79) The phrase “senior leaders or those most responsible” is therefore not a jurisdictional requirement: personal jurisdiction of the ECCC covers Khmer Rouge officials. (Id.)

Similarly, in relation to co-investigative judges, Internal Rule 55(4) provides that:

“[t]he Co-Investigating Judges have the power to … charge … persons against whom there is clear and consistent evidence indicating that such person may be criminally responsible for the commission of a crime …” [Emphasis added]

Contrary to the national co-prosecutor’s statement, the international co-prosecutor’s submission provided detailed descriptions of Yim Tith’s, Im Chaem’s, and Ao An’s authority and supports their participation and knowledge in the crimes with evidence (see Third introductory submission of 20 November 200, paras. 82-108).

Moreover, as part of the travaux of the Agreement, Cambodia’s government stated in 2005 that:

“no more than 10 people will be designated as senior leaders. However, there is still the second target. They are not the leaders, but they committed atrocious crimes. That’s why we use the term those most responsible.” [First Session of the Third Term of the Cambodian National Assembly 5 October 2004, quoted in Judge Clark, dissenting opinion, para. 106, emphasis added]

Meas Muth, Yim Tith, Im Chaem, and Ao An have all been investigated for atrocious crimes, i.e., genocide, crimes against humanity and grave breaches of the Geneva Conventions of 1949, and were therefore justifiably considered by the international co-investigating judge and the international co-prosecutor as falling within the category of “those most responsible for the crimes.”

Second, neither the Agreement nor the ECCC Law limits the number of suspects to be charged before the ECCC. Article 2 of the Agreement provides that:

“[it] recognizes that the Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1 of the Agreement.”

Articles 4-6 of the ECCC Law provide that:

“[t]he Extraordinary Chambers shall have the power to bring to trial all Suspects who committed or ordered the commission of genocide, […] crimes against humanity, […] grave breaches of the Geneva Convention of 1949.”

The Agreement’s drafting history reveals that the Group of Experts that advised the Secretary General in negotiations recommended that:

“[the] tribunal [should] focus upon those persons most responsible for the most serious violations of human rights during the reign of Democratic Kampuchea. This would include senior leaders with responsibility over the abuses as well as those at lower levels who are directly implicated in the most serious atrocities. We do not wish to offer a numerical limit on the number of such persons who could be targets of investigation. It is, nonetheless, the sense of the Group from its consultations and research that the number of persons to be tried might well be in the range of some 20 to 30. While the decisions on whom and when to indict would be solely within the discretion of a prosecutor, the Group believes that the strategy undertaken by the prosecutor of any tribunal should fully take into account the twin goals of individual accountability and national reconciliation.” [Report of the Group of Experts, para. 110]

In 2005, Cambodia’s government reaffirmed this understanding by stating that:

“no more than 10 people will be designated as senior leaders. However, there is still the second target [i.e., those most responsible] … There is no specific amount of people to be incited from the second group. Those committing atrocious crimes will possibly be indicted.” [First Session of the Third Term of the Cambodian National Assembly 5 October 2004, quoted in Judge Clark, dissenting opinion, para. 106; emphasis added]

Thus, contrary to the national co-prosecutor’s statement, the Agreement and the ECCC (including their drafting history) do not envision the prosecution of a limited number of individuals.

Third, the statement that “the Tribunal’s mandate can be adequately fulfilled through the prosecution of the suspects in Cases 001 and 002” is at odds with the purpose of the establishment of the ECCC, which is:

“[to bring] to trial … those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.” [Agreement, Article 1; ECCC Law, Article 1]

National judges’ reluctance to try other members of the Khmer Rouge, despite the enormous legal and factual evidence to the contrary and the herculean effort of the international component of the ECCC, reflects Hun Sen’s – Cambodia’s longest serving prime minister (since 1985) and a former deflector of the Khmer Rouge – position that the ECCC will not be allowed “to expand its prosecutions beyond the two cases already underway.” The political unwillingness coupled with “the continued … interference by the executive with the independence of the judiciary” (as noted by the General Assembly already in 2003 [Res. 57/225]), “little respect on the part of Cambodian courts for the most elementary features of the right to a fair trial” [Hans Corell’s 2003 Report, p. 8], and the majority of national – Cambodian – judges at the ECCC, inevitably (and unfortunately for the international justice) lead to the crippling of the ECCC.

Regardless of the very real political obstructions that have plagued the ECCC since its very beginning, the heavy lifting of the international judges in their plight to deliver justice to the Cambodian people and sustain the ECCC as a legitimate internationalized tribunal, is not to be overlooked.

Quis custodiet ipsos custodes?

In the current international reality, no other judicial authority can review ECCC’s termination of proceedings in Cases 003 and 004. After 15 years of proceedings, four out of nine indictments are not definite nor enforceable. The crux of the matter undoubtedly lies in the composition of this unique tribunal – the U.N.’s yielding to Cambodia’s condition of national judges’ majority – and the introduction of the supermajority rule.

Despite its shortcomings, the ECCC’s existence and its partial success is significant for over five million survivors and family members of the victims. The ECCC’s mandate continues, with the Addendum to the Agreement extending its operations for at least three more years. However, there will be no further criminal proceedings; from now on, the ECCC will be disseminating information of its work to the general public, in addition to supervising the enforcement of the two prison sentences and reparations due to the Civil Parties.

Unlike some other conflicts that remain unaddressed by an international (or internationalized) tribunal (think, for example, Sri Lanka up to 2009), Cambodian peoples’ suffering has received an international recognition and ECCC’s purpose was at least partially fulfilled with the sentencing of three of the most responsible leaders of the Khmer Rouge – Duch, Nuon Chea, and Khieu Samphân – to life imprisonment. Nevertheless, as the failure of Cases 003 and 004, 004/01, and 004/02 demonstrates, the extent of ECCC’s impact has been heavily restricted for reasons of domestic politics. Its legacy – like its nature – is, therefore, a hybrid one: somewhere between international law and politics.

IMAGE: Attendees line up for the verdict of ex-Khmer Rouge head of state Khieu Samphan, who is appealing against life imprisonment for his role in the genocide committed by the regime, at the Extraordinary Chamber in the Courts of Cambodia (ECCC) in Phnom Penh on September 22, 2022. Cambodia’s UN-backed court for the Khmer Rouge gave its final verdict on September 22, ending 16 years of work with a ruling on the last surviving regime leader’s appeal against his conviction for genocide. (Photo by TANG CHHIN Sothy / AFP) (Photo by TANG CHHIN SOTHY/AFP via Getty Images)