Building vibrant and tolerant democracies
(Read the full article here or download it below) - By Heather Ryan, Monitor for the Khmer Rouge Tribunal - The Extraordinary Chambers for the Courts in Cambodia (the ECCC) represent an unprecedented experiment to create a mixed domestic and international court to address gross atrocities committed against civilians in Cambodia by members of the Khmer Rouge regime from 1975-1979. Lessons from its experience may prove useful to jurisdictions in Africa struggling to deal with mass atrocity crimes.
The ECCC is a specialised court to try individuals who were ‘senior leaders’ and ‘most responsible’ for war crimes, crimes against humanity and genocide. It was established in 2006, nearly 30 years after the crimes occurred. The court was designed – unlike strictly international courts such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) – to hold trials in the country where the crimes occurred and to involve, to the extent consistent with international fair trial standards, Cambodian judges, officials and procedures. Established through an agreement between the Cambodian government and the United Nations, the court was also designed to serve as an example to Cambodians of an independent and fair judicial process and, thus, advance badly needed judicial reform in the country’s domestic courts. International involvement in establishing the court was intended to help address (a) the lack of a track record in Cambodia of justice free from political control; (b) the need for capacity building within the Cambodian judicial system; and, (c) the need for financial support for complex investigations and trials.
The ECCC is ongoing. It has completed just one trial and only began its second trial in November 2011 so the measure of its contribution to justice and the Cambodian people is still uncertain. The court has faced some serious problems – many predictable from its complex structure – in pursuing its goals, but it has also realised some important achievements. Insights from both the mistakes and the successes of the ECCC may prove useful to African nations and stakeholders debating how best to deal with perpetrators of mass crimes.
In many circumstances, mass crimes come under the jurisdiction of the ICC (which only has jurisdiction over certain crimes committed after July 2002). However, the country where they occurred may see advantages to addressing them within a domestic institution. This is consistent with the ‘complementarity’ requirements of the ICC, which prevent the ICC from asserting jurisdiction over a situation if an appropriate domestic jurisdiction is both willing and able to do so. The purpose of this complementarity requirement is to encourage – to the greatest extent possible – the development of domestic capacity to deal with mass crimes. Unfortunately, countries where atrocities occur often have inadequate judicial mechanisms to deal with them, particularly after years of war. Countries with judicial systems that cannot meet basic fair trial standards may wish to try and meet the ICC’s complementarity standards by seeking international assistance in a domestic tribunal. The successes and challenges of the ECCC in this regard may provide useful insights into this strategy.
The ECCC is technically a part of the domestic judicial system of Cambodia, although it operates independently from, and under substantially different rules to, other Cambodian courts. Prosecution functions are lead by two co-prosecutors – one Cambodian nominated by the Cambodian government and one international nominated by the UN. Two co-investigating judges are nominated in the same way to handle judicial investigations. To the extent the co-holders of these positions cannot agree, there is a complicated appeal process designed to favour the position of the international prosecutor or judge. The trial chamber of five judges consists of three Cambodian judges and two international judges. Important decisions by the chamber must be made by a ‘super-majority’ of four out of the five judges in order to ensure that at least one of the international judges concurs. These provisions were intended to address the concern that inappropriate political pressure could be brought to bear on the Cambodian officials.
International staff experienced in international criminal law function side by side with Cambodian colleagues in each section of the court to help build the capacity of less experienced Cambodians. The presence of international officials at all levels necessitates that the court operate simultaneously in three languages: Khmer, English and French. The ECCC structure is an attempt to combine the advantages of a local justice mechanism with protections to ensure that international fair trial standards are met.
Making the proceedings accessible and relevant to Cambodians
Since the ECCC operates in the country where the Khmer Rouge’s mass crimes were committed, efforts have been made to ensure that the proceedings are as accessible as possible for victims, witnesses and local media throughout the country. Television, newspapers, and radio cover the proceedings. During each trial, there is daily courtroom coverage. Moreover, the courtroom gallery provides enough space for around 500 observers, and free buses are provided daily to and from the capital of Phnom Penh for those wishing to witness the trial. This is a dramatic contrast to most international courts where proceedings take place in foreign countries – often very far removed both physically and culturally from where the crimes occurred and the victims reside. (Even in the Special Court for Sierra Leone, the trial of former Liberian President Charles Taylor was moved to The Hague for security reasons, although other trials were held in the Sierra Leonean capital, Freetown.) In most other international or hybrid courts, it is necessary to go to the court’s website to view video-streaming of the proceedings while they are live, unless one is able to watch from the small courtroom gallery. To fill the information gap, non-governmental organisations (NGOs) cover some of these trials on a daily or weekly basis.
The ECCC’s first trial – concerning charges of war crimes and crimes against humanity against Kaing Guek Eav, alias Duch, who was the warden of a notorious prison and death camp – was televised in real time throughout Cambodia by a government-controlled television station. While many Cambodians in this largely poor and rural country do not have televisions, most were able to see at least some of the trial on televisions within their communities. Thousands of citizens, particularly victims, were able to visit the court, meet with court officials and watch a part of the proceedings live, all with the assistance of the ECCC outreach section or the active NGO community. In stark contrast to international tribunal proceedings, the ECCC courtroom was full to near capacity each day of the Duch trial.
Civil society groups committed to victims’ rights, healing and reconciliation organised community meetings in rural Cambodia to explain the court process and address questions by victims. They created explanatory films that were shown throughout the county, and provided some mental health services to victims still dealing with trauma from the Khmer Rouge period. While much more of this work - generically referred to as outreach – could have been done to bring the court closer to the Cambodian population, the combination of an active (and modestly well-funded) NGO community, court-sponsored outreach and local proceedings greatly enhanced the impact of the ECCC in Cambodia – a society in which a majority of the people over the age of 40 are direct victims of the Khmer Rouge.
It is axiomatic that a court designed to deliver justice to a wounded population must be seen and generally understood by the population it seeks to serve. Support – financial and political – for outreach efforts by civil society organisations and the court is essential if this goal is to be met. Court proceedings that are held locally, in the local language, and that follow local procedures greatly simplify and enhance outreach efforts.
Involvement of victims
The ECCC is unique in that victims of the crimes under the court’s jurisdiction have been permitted to participate directly in proceedings as civil parties. (The ICC also has this provision, albeit with somewhat different practices.) The court adopted Cambodian civil law practices to allow victims to take part in the trial alongside the prosecution and to request symbolic reparations. The court also developed specialised procedures to allow victims a real voice while still protecting the rights of the accused under fair trial principles.
The role of victims in trials for international crimes is gathering important attention, but there is very little precedent for how it should be handled in actual trials. The ECCC ran into many difficulties trying to craft a process for victim participation and has changed the procedures considerably over the life of the court. The civil party participation scheme remains substantively and logistically awkward, but does meet the goal of providing some direct opportunity for victims to address the court and the accused, and to express something of their experience. This proved to be a particularly moving aspect of the first ECCC trial – and particularly important both for the victims who actually participated in the trial process and for the rest of the population who heard their own suffering represented in those victims’ voices.
There is evidence that some transfer of skills has already resulted from the ECCC structure of having experienced international judges, prosecutors, and defence counsel working side by side with Cambodian counterparts, who are less experienced in complex criminal cases. As the first trial progressed, there was a visible improvement in the skill demonstrated by the Cambodian trial judges and counsel for the parties. The individuals clearly learned from the example of their international colleagues and their experience with the court. However, it remains to be seen if, and how, they will be able to transfer these skills when they return to the domestic court setting. A concerted effort by the ECCC, the government and civil society to ensure a lasting transfer of skills and knowledge to a broad group of players in the domestic legal system would help to leverage the advantage of domestic participation in the ECCC.
While the establishment of the ECCC as a part of the domestic judicial system was important in making it relevant and accessible to the affected population, it also created a dilemma because of the deep concerns about the independence of the domestic judiciary. As is often the case, conflicts that result in mass violations of international law were correlated with both the failure and the destruction of a credible system of independent justice.
To be effective in bringing justice and a sense of healing and reconciliation to a population confronting mass crimes, a court must be seen by its intended beneficiaries to be competent, independent and fair. To date, the ECCC has not fully succeeded in this goal. There is significant public evidence that the government of Cambodia seeks to control who is brought before the court as an accused person and, in some instances, as a witness. This is clearly inconsistent with basic fair trial standards for independence and impartiality. It also hinders the ECCC’s capacity to improve, by example, the domestic rule of law system and entrenches impunity if an independent investigation leads to individuals that the government blocks access to.
Recent events have demonstrated that the measures built into the structure of the ECCC to prevent political interference have been inadequate and that there is no process to hold people who appear to improperly bow to political pressure accountable. The lesson of this unfortunate situation is that robust systems of accountability and protection of international standards must be built into any court structure. This is not an easy task as accountability measures often conflict with the broad independence granted to judicial officers and the subtlety that political interference or other forms of inappropriate conduct can take. Nonetheless, it is critical to realistically evaluate what protective measures are needed when the court is established. The ECCC structure has also demonstrated that weak, lazy or incompetent international prosecutors, judges or administrators can doom the institution to failure, particularly when the UN or other partner institutions, as well as donors, fail to take adequate measures to redress the problem. Critically, mechanisms must be in place to assess credible allegations of incompetence, misconduct, non-independence or corruption of court officials.
While it is clear that in any judicial system some level of secrecy is appropriate at certain stages in the proceedings, undue secrecy undermines confidence in courts. The identity of witnesses must be strictly protected when security issues exist, and the progress of investigations might be hampered by early disclosure of information about the investigative strategy. Confidentiality protections for such matters are appropriate. Unfortunately, the ECCC has gone much further than necessary in holding information secret. As a result, for long periods of time there was no information coming from the court about its work. Information needed by victims to decide if they wanted to participate in the proceedings was not available to them in time to make a reasonable and informed choice. When questions were raised about the propriety of proceedings or practices at the court, a reaction of increased secrecy added to the controversy and the suspicion of Cambodians and internationals that the court was not operating in a manner that was consistent with fair trial standards.
The lesson from this experience is that maximum transparency about the court’s operations and proceedings enhances its credibility and relevance to the population. Balancing this principle with the legitimate need for confidentiality of some information is not easy, but great care is needed to ensure that secrecy is not used more broadly than strictly necessary.
Time, budget and efficiency
The ECCC began administrative operations in early 2006. By November 2011, it had completed the trial of only one individual. The trial of three others had just begun, while a fourth had been declared unfit to stand trial. There are five additional accused who have been under investigation for several years without clarity about if or when charges will be brought.
Yet the ECCC’s expenditures from 2006 until the end of 2011 are estimated at around US$150 million. The final budget will easily exceed US$200 million. This is a huge amount of money in a very poor country for what may only amount to the trial of four or five individuals responsible for the deaths of almost 2 million people. Initial estimates unrealistically pegged the budget for the court at US$56 million, with just 3 years needed to complete its work. Subsequent time delays and increases in the budget have created difficult, and at times desperate, fundraising crises. In some instances, local staff members were not paid a salary for several months. A number of international donors have also hinted that they may not be willing to continue to fund the court through its conclusion – clearly an untenable situation.
Competent justice mechanisms that meet basic fair trial standards are costly, particularly when dealing with high-level perpetrators of mass crimes. Yet it is crucial to design a process that is not so expensive or time consuming that it cannot be sustained to completion. In this regard, the entire field of international justice must make progress if it is to succeed. In the meantime, any process established to deal with a particular situation must be focused, simplified and efficient while remaining consistent with basic fair trial standards and the other goals of the institution. Budgeting for the institution must be realistic and care must be taken to ensure that the expected funding sources are committed to adequate funding through the end of the court’s mandate.
External monitoring of fair trial standards, including independence of the judiciary, was critical to the success of the first trial before the ECCC. The Open Society Justice Initiative – as well as other NGOs, journalists and organisations – repeatedly raised alarms when the court veered off course or was close to collapse, and pressurised the UN and the diplomatic and donor communities to remedy failures. External monitoring and reporting is indispensible in ensuring that courts are fulfilling their mandates and operating credibly and fairly. Without it, public confidence in the proceedings has been shown to be low. More significantly, without oversight, defendants may not necessarily receive a fair trial.
Other transitional justice mechanisms
The ECCC was established as the sole transitional justice mechanism to deal with the aftermath of the Khmer Rough atrocities. It quickly became clear that this judicial process alone was insufficient to fully deal with the needs of Cambodians for justice, reconciliation and healing. However, Cambodia did not contemplate truth commissions or domestic trials to respond to the need for a broader justice than could be provided by trying a handful of former Khmer Rouge leaders. There was no programme established for material reparations for direct victims of the Khmer Rouge, and no widely available system for mental health assistance to survivors. One of the benefits of the ECCC proceedings being located in Cambodia is a greater interest, and perhaps need, generated among many Cambodians for a more diverse range of opportunities to deal with the past. But in Cambodia, planning to address this situation has been minimal so far and conducted with insufficient funding by concerned NGOs.
The experience of the ECCC offers two key lessons in this regard. Firstly, a court designed to try high-level perpetrators can only bring a limited sense of justice and closure to a large victimized population. And secondly, governments should consider transitional justice mechanisms – such as truth commissions, genuine domestic trials of lower-lever perpetrators and reparations programmes – as contemporaneous and perhaps necessary complements to a court designed to try the most responsible perpetrators.
Summary of lessons