Kampala pix redux

From alumna Margaret deGuzman, a guest post contributing more photos -- captions at bottom -- from the just-ended the ICC Conference, another in IntLawGrrls' series on events in Kampala)







At left, Benjamin B. Ferencz, former U.S. prosecutor before the post-World War II International Military Tribunal at Nuremberg and indefatigable advocate for international criminal justice, adance.

IntLawGrrl Beth Van Schaack (right), who served as academic advisor with the U.S. delegation in Kampala, and me.

Conference session; at far left of the podium is Prince Zeid Ra'ad Zeid al-Hussein of Jordan, Chair of the Working Group on the Crime of Aggression.

Preparation for whitewater rafting on the Nile River. Familiar faces include Case Western Law Professor Michael P. Scharf, 3d from left. To his right: Robert Petit, former International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia; me; Duke Visiting Assistant Law Professor Noah Weisbord; and Professor William A. Schabas, Director of the Irish Centre for Human Rights in Galway.

Vindication, but too late?

As we’ve blogged before, the Extraordinary Chambers in the Courts of Cambodia were recently seized of a disagreement between the two Co-Prosecutors over whether to forward new Introductory Submissions to the Co-Investigating Judges for judicial investigation pursuant to Internal Rule 53. (Introductory Submissions are written submissions by the prosecutor to an investigating judge requesting an investigation into crimes and proposing charges). The International Co-Prosecutor — at the time, Canadian jurist Robert Petit (left) — sought to supplement the investigation of Case 002 (which concerns the four former Khmer Rouge principals in custody) and launch two new cases (Cases 003 and 004). The Cambodian Co-Prosecutor — Chea Leang (below right) — opposed any expansion of proceedings beyond the five suspects already in custody. Petit argued in his submissions that the only requirement to open an investigation was the determination that there were reasonable grounds for believing that additional crimes within the jurisdiction of the ECCC had been committed. By contrast, Leang argued that extra-legal factors — such as the limited nature of the ECCC’s mandate, the threat of instability, and resource constraints — counseled against any expansion of charges.

Anticipating just such a disagreement between Cambodian and international personnel, the ECCC’s constitutive documents provide that disagreements of this nature are to be resolved by the Pre-Trial Chamber — a mechanism that is unique to the ECCC and strains classic separation of powers principles. In this process, the burden of persuasion rested with the National Co-Prosecutor. A decision of four of the five judges of the Pre-Trial Chamber (composed of three Cambodian and two foreign jurists) would have been necessary to block the additional investigations from going forward.

After receiving a number of written submissions from the Co-Prosecutors (who both agreed that an oral hearing was unnecessary and undesirable), the Pre-Trial Chamber (below left) issued its ruling on August 18, 2009; that ruling was released yesterday. The Chamber was unable to reach a majority, and so the International Co-Prosecutor has a mandate to seek the supplemental and new investigations.

Revealing that the dissension within the Chamber was, predictably, along nationality lines, the three Cambodian judges and the two international judges issued separate opinions. The Cambodian judges argued that the International Co-Prosecutor’s supplemental investigation was unlawful because it was conducted unilaterally without the cooperation (or knowledge) of the National Co-Prosecutor. They also reasoned that the (mostly redacted) facts on which the International Co-Prosecutor premised the proposed additional investigations were already part of the investigation of Case 002, including allegations of forced marriage. Accordingly, in their opinion, no new Introductory Submissions were warranted.

The international judges, by contrast, argued that concerns about the illegality vel non of the International Co-Prosecutor’s investigation were untimely. They also noted that new proposed Introductory Submissions were required if the Co-Investigating Judges were to consider the new facts revealed and that the new submissions were structured differently in terms of their subject matter and foci than the first submissions. The decision is not subject to appeal (Article 7(4) of the Agreement establishing the ECCC).

The vindication comes too late for Petit, who has stepped down as International Co-Prosecutor citing family reasons. The appointment of Australian William Smith (right), formerly the Deputy Co-Prosecutor, as interim Co-Prosecutor took effect this past Monday.

It remains to be seen who else will be the subject of investigation, although at the time the disagreement was revealed, Petit did state that additional suspects would not threaten the Royal Government of Cambodia. The government may feel otherwise, as it was widely believed that governmental authorities had pressured Leang to resist the expansion of any investigation.
Stay tuned...

Who Next?

After being stymied by an entrenched culture of impunity and vacillating political will at home and abroad, Cambodia’s international criminal tribunal—officially named the Extraordinary Chambers in the Courts of Cambodia (right)—is up and running. As we've blogged before, the tribunal was established to prosecute members of the Khmer Rouge—a brutal regime that brought about the deaths of upwards of 1.7 million people through execution, torture, starvation, and forced labor during its almost four-year reign (1975-1979). Though long-awaited, the tribunal is on the verge of betraying its mandate by prosecuting only a handful of defendants.

The Agreement establishing the Extraordinary Chambers obligates the tribunal to

bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes

of the Khmer Rouge era. Accordingly, the Tribunal is to focus its prosecutions on two sets of defendants: senior leaders and those deemed “most responsible” for international crimes. At the moment, the Tribunal has five suspects in custody, four of whom fall within the first category. These four—Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith—represent the only surviving members of the “Standing Committee” of the Cambodian Communist Party (the CPK), and Pol Pot’s most intimate inner circle. The fifth defendant, Kaing Guek Iev, a.k.a. Duch, while not high within the CPK hierarchy, satisfies the second criterion. The evidence against him, including his own admissions, suggest that he qualifies as one most responsible for international crimes in light of his role overseeing the torture and execution machinery of S-21—just one prison among many around the country that was established to interrogate and then execute perceived enemies of the revolution.

The decision of whether to pursue additional defendants rests with the tribunal’s two Co-Prosecutors. Reflecting the tribunal’s hybrid nature, each key position is essentially shared by a Cambodian and an international staff person. The Co-Prosecutors are in disagreement as to whether additional defendants should be investigated beyond the five already in custody. The international Co-Prosecutor—Robert Petit (left), a Canadian jurist—is in favor of additional investigations while his Cambodian counterpart—Chea Leang (below right)—is opposed for reasons that remain confidential.

According to the tribunal’s constitutive statute, if such disputes cannot be resolved internally, they are to be referred to a Pre-Trial Chamber of judges for decision, a process that raises bizarre separation of powers implications. The PTC can only rule by supermajority; at least one international judge must join the decision. Petit has filed an official "notice of disagreement," officially triggering this dispute resolution process.

The Pre-Trial Chamber should give Petit the green light to expand his investigation beyond the five current suspects. The international community has already made a huge investment—in donor funds, personnel, logistical support, and technical expertise—in the Extraordinary Chambers to ensure accountability for the crimes of the Khmer Rouge era. The United States has finally taken a leading role in this process and recently pledged almost $2 million toward the trials. It would be a shame if this investment yielded only five prosecutions. It would also undermine many of the United States’ and the international community’s objectives for the Tribunal.

Were the Extraordinary Chambers (below right) to prosecute only these five notorious suspects, the proceedings would paint an inaccurate and incomplete picture of the way in which crimes were committed under the Khmer Rouge. Massive and systematic crimes, like those of the Khmer Rouge, require the participation of many individuals at multiple levels of responsibility. While the Standing Committee may have devised the draconian policies that so characterized the Khmer Rouge, it was middle-level functionaries, prison chiefs, and zone commanders, like Duch, who were responsible for their implementation. Indeed, academic research suggests that Khmer Rouge cadre were given considerable discretion to implement the sometime cryptic directives emanating from the Standing Committee. So, some provinces and villages suffered more than others. Presenting evidence of the full range of responsibility within the criminal apparatus of the Khmer Rouge will ensure that the Cambodian people have a fuller understanding of the patterns of obedience and violence that held sway during that fateful era. This will enable the Extraordinary Chambers to contribute to the development of a shared national history that will hinder efforts by some to deny, or simply bury, the past.

In light of these considerations, the Co-Prosecutors should proceed against a limited number of other individuals in the class of Duch: individuals who may have committed particularly brutal crimes in their local communities. The purposefully narrow scope and limited life of the Tribunal should not be employed as an excuse to pursue an incomplete accountability; rather, prosecutions should proceed where they are justified by the evidence. The two-tiered structure of the Extraordinary Chambers—which places investigative authority first in the Co-Prosecutors and next in the Co-Investigative Judges—will ensure that only those charges that are fully warranted by the evidence will go forward to trial. It is only where criminal proceedings are evenhanded and comprehensive that they will be considered credible. It is only where criminal proceedings are considered credible that they will be able to contribute to a genuine and meaningful reconciliation within Cambodian society and to the establishment of a robust rule of law. Because no alternative transitional justice mechanisms are contemplated for Cambodia, the Extraordinary Chambers offer the only chance to explain fully and incontrovertibly why and how the Khmer Rouge committed their crimes.

After all they have suffered, the Cambodian people deserve nothing less.

(cross posted at the Cambodia Tribunal Monitor)