Read On! About Khmer Rouge Trials

(Read On! ... occasional posts on writing we're reading)

I've just had the chance to review a great new volume on the proceedings before the Extraordinary Chambers in the Courts of Cambodia edited by John Ciorciari (below right) and Anne Hendel (right) entitled On Trial: The Khmer Rouge Accountability Process.
John just joined the faculty of the Gerald R. Ford School of Public Policy and the University of Michigan after spending some time with the Freeman Spogli Institute at Stanford University. After serving as Assistant Director of the War Crimes Research Office at American University, Anne, an IntLawGrrls guest/alumna, joined the Documentation Center of Cambodia as a full time legal advisor. (John also advises the Center). Both have been long-time Cambodia watchers, and this book is the culmination of their work in this area to date.
Both Ann and John have chapters in the book, and they are joined other foreign and Cambodian researchers exploring these topics. In addition to providing a useful overview of the Extraordinary Chambers in terms of structure and procedure, the book covers several topics that remain central to the success and legitimacy of the ECCC's proceedings:

1. The History and Politics Behind the Khmer Rouge Trials


2. The Jurisprudence of the Extraordinary Chambers


3. Court Administration at the ECCC


4. Including the Survivors in the Tribunal Process


5. The ECCC’s Role in Reconciliation

The jurisprudence chapter encapsulates much of the complex pre-trial rulings to date concerned with pre-trial detention, forms of detention, double jeopardy, translation duties, the validity of the amnesty law, and fitness to stand trial. The material on victim participation (featured throughout the book) is especially compelling, as the ECCC is well ahead of other tribunals in terms of providing victims with participatory rights. That chapter's authors, IntLawGrrls guest/alumna Sarah Thomas and Terith Chy, have direct experience with victim issues. (Terith heads DC-Cam's Victim Participation Project). The chapter on Court Administration, by Chapman University School of Law Professor John Hall, takes on the corruption allegations that have dogged the tribunal to date. The final chapter situates the ECCC within the larger imperatives of transitional justice in the Cambodian context.
Original photographs, some dating from the Khmer rouge period, grace the book throughout and are reason enough to click on the link below.

The full monograph is available here.

Some further praise for the book:

This invaluable collection of essays, sponsored by the Cambodian NGO that has pioneered research on the Khmer Rouge era, provides a wealth of information about the so-called Khmer Rouge Tribunal. On Trial is accessible, well researched, and passionately engaged with the innumerable tragedies of the Khmer Rouge period. Its authors argue that the ongoing trials may possibly lead toward deeper reconciliation and certainly a deeper knowledge of what happened throughout the country in those horrific years.

–Dr. David P. Chandler, Professor Emeritus of History at Monash University, Australia, and renowned historian of Cambodia

The Khmer Rouge Tribunal is profoundly important to Cambodians and non-Cambodians around the world. It excites passion, arouses controversy, and offers to many victims the hope of justice too long delayed. This timely and essential book provides an excellent overview of the Tribunal, a thoughtful review of its progress to date, and sensible suggestions on how it can best meet its obligations to the Cambodian people and the international community.

–Dr. Sophal Ear, Assistant Professor of National Security Affairs at the U.S. Naval Postgraduate School and survivor of Democratic Kampuchea

This book of essays will take an important place among the many books and articles written about the recent history of Cambodia and particularly the Khmer Rouge period. It provides a useful historical and intellectual context for the trials currently underway before the ECCC. For observers and academics its most useful sections may prove to be those that analyse the law, jurisprudence and procedures governing the trials and the many issues that this unique Tribunal has overcome and has yet to resolve. DC-Cam has again assisted in the vital task of providing the public with information that helps unravel the tragic puzzle of how to deal with the aftermath of Democratic Kampuchea.

–Judge Silvia Cartwright, Extraordinary Chambers in the Courts of Cambodia

Guest Blogger: Anne Heindel

It's IntLawGrrls' great pleasure to welcome as today's guest blogger Anne Heindel (right).

Anne's a Legal Advisor to the Documentation Center of Cambodia. She advises the Center's Extraordinary Chambers in the Courts of Cambodia Response Team, and manages its legal associate program. Her guest post below -- the latest in our ongoing series on Khmer Rouge accountability -- analyzes a detention decision of the ECCC in light of the jurisprudence of various human rights and international criminal tribunals.

Prior to joining the Center, known familiarly as DC-Cam, Anne was Assistant Director of the War Crimes Research Office at American University, Washington College of Law, where she supervised legal research and writing on new questions of humanitarian and international criminal law for clients including the International Criminal Court, the Special Court for Sierra Leone, the ECCC, and the Special Panels for the prosecution of serious crimes in East Timor. She has also worked for several human rights NGOs. Anne holds an LL.M in international studies from New York University School of Law and a J.D. from the University of California Hastings College of the Law in San Francisco.

Heartfelt welcome!

Detention & the well reasoned opinion

My thanks to IntLawGrrls for inviting me to contribute this guest post, another in the Khmer Rouge Accountability series.
The Co-Investigative Judges of the Extraordinary Chambers in the Courts of Cambodia recently found that there were well founded reasons to believe that Nuon Chea committed crimes against humanity and war crimes and ordered his provisional detention “for a period not exceeding one year.” the Judges then extended Nuon’s detention for an additional year. Nuon (above right), also known as "Brother Number Two," is appealing the order. (credit for Reuters photo by Chor Sokunthea)
ECCC Internal Rule 63 allows persons charged with crimes against humanity and war crimes to be detained provisionally for an initial one-year period, which can be extended a maximum of two times. Therefore, if the required conditions continue to be met, Nuon can be held in detention before being formally indicted until no later than September 2010. The ECCC Internal Rules require provisional detention orders to set out the legal grounds and factual basis for a Charged Person’s detention. Rule 63(3) provides that the Co-Investigating Judges must have a well founded belief that a detainee committed the crimes with which he or she is charged, and must find detention to be a necessary measure to:
► prevent the Charged Person from exerting pressure on any witnesses or Victims, or prevent any collusion between the Charged Person and accomplices of crimes falling within the jurisdiction of the ECCC;
► preserve evidence or prevent the destruction of any evidence;
► ensure the presence of the Charged Person during the proceedings;
► protect the security of the Charged Person; or
► preserve public order.
In the order extending Nuon’s detention, the Judges said that 23 new statements by Charged Person Kaing Guek Eav, aka Duch, regarding Nuon’s role in S-21 provide additional support for their well founded belief that he committed the charged crimes. They did not discuss the other five conditions; rather, referring to the body pictured at left, they wrote that “the reasons of the Pre-Trial Chamber in its Decision of 20 March 2008 remain valid.”
Internal Rule 63(7) requires the CIJs to provide written reasons for extending detention. The International Criminal Tribunal for the Former Yugoslavia has emphasized that review of detention is legally necessary so that a Chamber “can assure itself that the reasons justifying detention remain.” Prosecutor v. Mucic et al., Case No. IT-96-21, Decision on Motion for Provisional Release Filed by the Accused Zejnil Delalic, ¶ 24 (Trial Chamber, 25 Sept. 1996). This is more important the longer a Charged Person is held pre-trial. For example, the Inter-American Commission on Human Rights has found that “[t]he effectiveness of legal guarantees should be heightened in direct proportion to the growing length of time spent in preventative detention.” Bronstein et al. v. Argentina, Report No. 2/97, ¶ 19, Inter-Am. C.H.R, OEA/Ser.L/V/II/95 Doc. 7 rev. at 241 (1997).
The jurisprudence of human rights bodies such as the Inter-American Commission, European Court for Human Rights, and Human Rights Committee disfavors pre-trial detention and places the burden on States to justify continued detention. See, e.g., Ilijkov v. Bulgaria, App. No. 33977/96, Eur. Ct. HR, ¶¶ 84, 85 (2001). In contrast, international and hybrid criminal courts have treated pre-trial release as the exception and in practice have placed the burden on the defense to show that release is warranted. See, e.g., Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatimir Limaj’s Request for Provisional Release, ¶ 40 (Appeals Chamber, 31 Oct. 2003).
Notably, neither the Special Court for Sierra Leone nor the International Criminal Tribunal for Rwanda has ever granted any accused pre-trial release. These courts have justified their more restrictive approach in part by highlighting the severity of the crimes they prosecute. See, e.g., Prosecutor v. Issay Hassan Sesay et al., Case No. SCSL 2004-15-PT, Decision on Application of Issa Sesay for Provisional Release, ¶ 40 (Trial Chamber, 31 March 2004).
Despite their different starting points, both human rights bodies and international/hybrid courts take a somewhat similar methodological approach to determining whether the factors justifying detention have been met. They look at each situation on a case-by-case basis and balance factors, including those referenced in Internal Rule 63(3). Human rights bodies have generally required that the factors justifying detention be discussed in a “clear and specific” and not “stereotyped” manner. Letellier v. France, App. No. 12369/86, Eur. Ct. HR, ¶ 52 (1991). On the other hand, international and hybrid criminal courts have tended to accept more generalized justifications for detention.
In short, these sources suggest that in extending Nuon’s detention the Co-Investigating Judges had an obligation to address how the five conditions in Rule 63 continue to be met, at least in a general way, and not merely to refer to the decision of the Pre-Trial Chamber. Nevertheless, following international and hybrid court practice, the Pre-Trial Chamber will likely determine that the burden is on Nuon to convince it why his detention is no longer justified.

The jurisdictional reach of hybrid courts

Amidst much excitement over the unveiling of a UNDP audit finding financial mismanagement at the Extraordinary Chambers in the Courts of Cambodia (ECCC), interesting recent developments in the case of Kang Guek Eav, aka "Duch" (pictured at left), have gone relatively unnoticed. Duch, the former director of S-21, the central prison in Phnom Penh that was a site of horrific torture under the Khmer Rouge regime, has been detained since May 1999 awaiting trial for domestic and international crimes including crimes against humanity and war crimes. Not surprisingly, Duch's lawyers have challenged his "provisional" detention, arguing that his eight-year detention violates Cambodian and international human rights law. This week, the Pre-Trial Chamber announced that the appeal of Duch's detention order will be heard in public at a date TBD. Last week, dueling amicus briefs spoke to the ECCC's authority to rule on the legality of Duch's detention order, which was issued by a military court years before the ECCC came into existence. Prof. David Scheffer, former U.S. Ambassador-at-Large for War Crimes, argues here that the ECCC cannot rule on the legality of Duch's prior detention order, while Anne Heindel, a legal advisor to the Documentation Center of Cambodia (pictured above right at the ECCC site with DC-Cam Deputy Director Dara Poeuv Vanthan), argues here that the ECCC does indeed have jurisdiction to determine the legality of Duch's pre-trial detention. Heindel asks whether this sui generis instutition, created as part of the domestic court system, has the same or similar obligations as a Cambodian court to address due process violations. Moreover, as an international court, she argues that under ICTR precedent, the ECCC may be responsible for violations of Duch's rights while he was held in "constructive custody." Even if it is not, Heindel notes that the ECCC has an obligation to determine the legality of Duch's detention. In her words:

For eight years Duch has been held in detention without any apparent attempt to bring him to trial. He is not the only detainee in Cambodia who has been held for an extended period without process. It is essential to the legitimacy and legacy of the ECCC that it does everything in its power to ensure the rights of persons falling under its jurisdiction. By doing so, it can make a significant contribution to long-term reconciliation efforts in Cambodia, the scope of which extends far beyond the ECCC’s limited mandate and the short period of time during which it will be in operation.