As previously discussed (here and here), the Extraordinary Chambers in the Courts of Cambodia (ECCC) is winding down after 16 years of operation and three defendants sentenced, two of whom are serving their prison terms.
On Sept. 22, the ECCC’s Supreme Court Chamber (SCC) rendered the summary of its last substantive judgment in Case 002/02, confirming the conviction against Khieu Samphân, the former head of state of Democratic Kampuchea. That regime, also known as the Khmer Rouge, orchestrated the death of almost 2 million people between 1975 and 1979.
Much has been said about the political nature of the tribunal and the not-so-hidden agenda of Cambodia’s Prime Minister, Hun Sen to have the proceedings prematurely terminated despite the lengthy investigations (with four cases being dismissed). Politics aside, what will Case 002/02 (and the ECCC) be remembered for? This article discusses six takeaways of ECCC’s biggest case – and one of the largest in the history of international criminal law, ahead of the forthcoming full, “several hundred pages long,” Appeal Judgment (para. 8).
1. The Concept of Non-Authoritative Summary Pronouncement of a Judgment
Despite the world’s warm reception of the 34-page Appeal Judgment’s summary released on Sept. 22, the Appeals Judgment in Case 002/02 has technically not yet been rendered. As the SCC points out, “[o]nly the [forthcoming] full written judgment is authoritative” (para. 8). The summary only highlights the findings and is not an authoritative judgment of Case 002/02 (para. 8).
The ECCC has made issuing case summaries an unwritten practice, due to the length of the judgments and the need for translation into the tribunal’s three official languages – English, French, and Khmer. (For example, the Trial Chamber rendered its 33-page summary of its judgment in Case 002/01 on Nov. 16, 2018, and a fully reasoned opinion a few months later, on March 28, 2019).
2. A Whale Among the ECCC’s Cases
Case 002 was extremely complex due to the 40-year gap between the commission of the crimes and their persecution, domestic political obstruction, the ECCC’s budgetary constraints, the advanced age of the accused, and the amount of the material involved. The Case 002 indictment (Closing Order) alone is 402 pages long, with additional 339 pages of footnotes. Due to its size, Case 002 was clumsily split into two cases (Case 002/01 and Case 002/02), of which Case 002/02 received a bulk of the charges.
The Case 002/02 Trial Judgment is over 2,200 pages long. By comparison, the Case 002/01 Trial Judgment against the same defendants, Nuon Chea (the former Deputy Secretary of the Communist Party of Kampuchea) and Khieu Samphân consists of “only” 630 pages.
The forthcoming Appeal Judgment in Case 002/02 considers Samphân’s Appeal (770 pages), the Co-Prosecutor’s response to the Appeal (504 pages), and the submission of the Civil Party Lead Co-Lawyers – also as a response to the Appeal – (316 pages), totalling at 3,858 pages. In its Appeal, Samphân’s defence alleges 1,824 errors (para. 13), which were summarized into a staggering 256 grounds of appeal.
In addition, there are 106,836 confidential and 4,763 strictly confidential documents on Case File 002. Case 002/02 admitted 3,865 victims as Civil Parties and the Trial Chamber heard the testimonies of 185 individuals, including 114 witnesses, 63 Civil Parties, and eight experts.
The amount of material the SCC considered in the Case 002/02 was unprecedently substantial, not only as compared to other ECCC cases, but to the international(ized) criminal jurisprudence in general.
3. Clumsy Severance of the Proceedings in Case 002 into its Cases 002/01 and 002/02
Considering the unprecedented size of the Case 002, the Trial Chamber to (understandably) decided to sever the proceedings into two parts: Cases 002/01 and 002/02.
The Trial Chamber attempted the split several times (here, here, here, here, here, and here) – in a process the SCC heavily criticized for not consulting the parties to the proceedings as to what should be included in Case 002/01 and Case 002/02. Ultimately, Case 002 was divided as follows:
- Case 002/01: forced population movement and execution of Khmer Republic soldiers.
- Case 002/02: Genocide against Chan and Vietnamese groups, targeting Khmer Republic officials, treatment of Buddhists, forced marriages and rape, internal purges, crimes at worksites (1st Jan Dam, Kampong Chhnang Airport and Trapeang Thma Dam), crimes at security centers (S-21, Kraing Ta Chan, Au Kanseng, Phnom Kraol), and crimes at Tram Kok Cooperatives.
The Trial Chamber reserved the (disproportionate) bulk of the investigation for the second trial, which explains the amount of material considered in Case 002/02.
The unequal distribution of charges between Case 002/01 and Case 002/02 (based on the then-newly adopted Internal Rule 89ter) reflects the Trial Chamber’s interest in concluding at least part of the proceedings against the two elderly accused. That approach succeeded, as both Chea and Samphân were sentenced in Case 002/01. With Chea passing away in 2019, the Case 002/02 proceedings are only final against Samphân.
4. The Unsuccessful Attempts of the SCC to Convince the Trial Chamber to Establish a Second Trial Panel for Case 002/02
Due to Trial Chamber’s decision to sever Case 002, the SCC initially suggested (para. 51), then ordered, and ultimately reiterated that the establishment of the second Trial Chamber panel to consider the allegations in Case 002/02 was imperative (para. 74). However, the SCC’s plea was to no avail.
There is no basis in the ECCC Law or in the Internal Rules for the creation of a second Trial Chamber panel. The ECCC Office of Administration did hint that short of amending the U.N.-Cambodia Agreement for an accommodation of a second panel, the President of the Trial Chamber could instead rely on Article 3(8) of the U.N.-Cambodia Agreement concerning alternate judges, as the potential basis for a second trial panel. However, the President of the Trial Chamber was firmly against establishing a second Trial Chamber panel and explained that:
“appointing a second Trial Chamber panel to hear the remaining charges in Case 002/02 is not in the interests of justice since it would be less expeditious than proceeding within the existing bench who are already familiar with the case” (paras. 4, 10).
The second Trial Chamber never formed.
As predicted by the SCC, the failure to create a second trial panel gave rise to a number of allegations of bias accounting for the fact that the same judges, who convicted Chea and Samphân in Case 002/01 would also decide their fate in Case 002/02.
5. Special Panels Considering Several Allegations of Bias of the Trial Chamber and SCC Judges
While the President of the Trial Chamber rejected the establishment of the second trial panel to adjudicate Case 002/02 against Chea and Samphân, the Judicial Administration Committee (JAC) relied on Internal Rule 34(6) to create two special panels to deal with the allegations of bias.
The ECCC established a Special Panel for the Trial Chamber, and later a Special Panel for the SCC, to decide on the impartiality of the Trial Chamber judges (and later the SCC judges) in deciding both Cases 002/01 and 002/02 against Chea and Samphân.
Allegations of bias stemmed from the fact that the same judges who convicted Chea and Samphân in Case 002/01, would be considering allegations against them and their criminal responsibility in Case 002/02. The Special Panel of the Trial Chamber concluded that: (1) there was no actual bias of the judges, as two cases were substantially different, and that (2) there was also no appearance of bias, because Samphân failed to establish that a reasonable observer would consider that the Trial Chamber Judges were impartial against him (paras. 93-95).
However, the Special Panel’s decision on the Trial Chamber’s judges preceded the actual outcome in Case 002/02: the Special Panel rendered its decision on Jan. 30, 2015, a year and a half before the Trial Chamber rendered its Judgment in Case 002/02. Thus, the Panel’s decision concerning actual bias if the judges was itself hypothetical.
6. The ECCC Never Considered the Possibility of the Crime of Genocide Against the Cambodian People
Despite the widely-recognized atrocities of the Khmer Rouge regime, the ECCC never considered the possibility that the crimes committed between 1975 and 1979 amounted to genocide against the Cambodian people. Thus, statements that followed the rendering of the 34-page summary on Sept. 22, that the ECCC convicted a former head of state for genocide, are misleading.
Samphân was the only person convicted by the ECCC to be held accountable for genocide in a final judgment. However, Samphân’s conviction of genocide – without minimizing its importance in the least – relates only to the genocide against the Vietnamese minority (20,000), compared to the estimated 1.5 million Cambodian majority that perished in the same period. (The ECCC also found Chea in Case 002/02 guilty for genocide against the Vietnamese and the Cham population, but he passed away before the trial against him finalized). None of other convictions in Case 002/02 relate to the potential finding of a crime of genocide committed against the (majority) Cambodian people.
The ECCC did not even try any of the defendants for genocide against Cambodians. What is more, the ECCC has never characterized the atrocities committed against the Cambodian people as genocide: in their Closing Order, the Co-Investigative Judges failed to even explore the possibility that the crimes committed against Cambodia’s people amounted to a genocide, without any explanation as to why the Co-Investigating Judges reached this decision. (see Trial Chamber Judge You Ottara separate opinion, para. 4468).
Although Adama Dieng, a Special Adviser on the Prevention of Genocide, commented that Sept. 22 was a “good day for justice,” it might have been even better (and more just), had the Co-Investigating Judges included as a possible crime genocide against the Cambodian people in their indictment. With ECCC’s doors closing, so are the few options for an international tribunal to ever consider whether the crimes against the Cambodian people amounted to genocide.
The ECCC’s final case, which is among the most substantial in the history of international(ized) criminal law, carries important lessons on how not to mix domestic politics with the international legal order and raises a question whether there is a right to a fair international(ized) trial. Furthermore, the sheer amount of information and length of the convictions effectively masks the importance of the international legal analysis provided in the judgments, which makes an objective and unbiased third-party analysis even more daunting.
The magnitude of this case is unprecedented with the many crimes and crime sites considered, with the complexities of establishing the facts 30 years after they occurred, with cultural differences, political interference, and vague limits on the ECCC’s personal jurisdiction. But, scholars and commentators should not simplify Case 002/02 – or worse, dismiss it due to the political interference or lack of any visible change to Samphân’s prison sentence. Doing so may ultimately obscure the truth of these crimes and the legacy of their victims.