On Wednesday 09th, December, 2015 my colleagues and I were granted a golden opportunity to make a special visit to the Extraordinary Chambers in the Courts of Cambodia (the “ECCC”). One national volunteer, four national interns and five international interns from the Cambodian Center for Human Rights (“CCHR”) participated in the visit. Through the afternoon our group attended a public trial hearing of case 002/02, and met for a briefing with two international co-prosecutors, and two international defense counsel from the defense support section.
The ECCC was established in January 2006. It is usually known by Khmer people as the Khmer Rouge Tribunal. The ECCC is a hybrid tribunal because it is composed of both national and international personnel, and applies both domestic and international law. The trial aims to be conducted in conformity with international standards of justice. The scope of the ECCC’s jurisdiction includes a temporal jurisdiction, personal jurisdiction, and subject matter jurisdiction. The court’s temporal jurisdiction covers the period of Democratic Kampuchea, the so-called Khmer Rouge Regime. The period of this regime accounts for three years, eight months, and twenty days, which had spanned from 17 April 1975 to 6 January 1979. The personal jurisdiction is limited to only the senior leaders and those most responsible for crimes committed during the Khmer Rouge Regime. The subject matter jurisdiction of ECCC includes crimes against humanity, grave breaches of the 1949 Geneva Conventions, destruction of cultural property during an armed conflict, crimes against internationally protected people under the 1961 Vienna Convention on diplomatic relations, and domestic criminal law (torture, murder, and religious persecution under the 1956 Cambodia Penal Code).
At the beginning of our visit, we attended a public trial hearing of case 002/02 which concerned allegations of genocide of the Cham and Vietnamese populations in Cambodia by the Khmer Rouge, grave breaches of the 1949 Geneva Conventions, forced marriages and rape, purges, persecution of Buddhists, as well as other crimes against humanity. These crimes allegedly occurred at four security centers, three worksites and the Tram Kok Cooperatives. During the trial, one witness, named Oum Sun, was interrogated by two lawyers for the civil parties and by two lawyers from the defense.
After joining the hearing, we went to meet four international staff of the ECCC. During the meeting, we listened to their brief description of the scope of ECCC’s jurisdiction, establishment and structure of the hybrid court, its procedure of judicial process, and the challenges facing legal staff. The two international lawyers for the defense and two the international co-prosecutors raised similar concerns and challenges which they confront during their performance of duty.
One of their challenges raised by the trial counsel was the major difference between common law system and the civil law system. This hybrid court is designed to apply both national and international law, yet is supposed to be within the Cambodian national jurisdiction. Two international lawyers emphasized that their implementation and interpretation of law is sometimes at odds with that of their Cambodian colleagues, as each draws on experience in different legal systems. Given the contradiction, international lawyers have to reconcile their understanding of their own national legal systems with the unique identity of the ECCC, especially if they come from common law-based countries such as the USA or the UK. If the civil law system doesn’t match their common law system, this may create obstacles in terms of trial procedure and process. This problem is hard to surmount and can even result in stalemates in the progress of the trials.
The second challenge raised by counsel was the translation of court proceedings. Three languages are formally used in this court: French, English, and Khmer. Most of the foreign staff are not able to read and understand all three languages, so they must solely rely on the translator and interpreter. The dependence on translators and interpreters can certainly hinder them from conducting a duly comprehensive investigation, discovering solid evidence, and making a profoundly detailed analysis of the facts. Translation issues also impact on fair trial rights for defendants, because neither the counsel nor the defendants themselves can know whether the translator is impartial, professional, or independent. Our group saw for ourselves how translation inadequacy can be a significant issue, as we observed that during the trial, details were lost in translation, slowing the progress of the trial and creating confusion, especially when questioning witnesses. As for the impact of translation on the prosecution, translation issues also impact on their duties. When details are lost in translation, and counsel are not able to fully understand proceedings, this obligation becomes difficult to fulfill. Therefore, the language barrier in the court not only causes delays, but also impact on the fair trial rights of the defendants.
The last challenge for lawyers in the ECCC is external pressure. The pressure might arise from the presumption of the defendants’ guilt by Cambodian people and the international population. Conversely, it may stem from the Cambodian Government’s resentment of UN interference in the Cambodian legal system. The Government, which itself contains fellow ex-Khmer Rouge cadres, would prefer to protect some of those on trial, and those subject to outstanding arrest warrants. As such, the judges may face government pressure to prove the defendants innocent. In turn, international law may not be fully applied in this court and international standard of justice may not be reached. External pressure might also come from the fact that the UN has spent so much time and money setting up the ECCC, so finding the defendants innocent might appear to make this effort futile.
As such, I believe the result of the trial could be unfair to the defendants. This appears to be supported by previous cases. For instance, after the case 002/01 was finished, both defendants filed an appeal to the court against the judgement. However, even on appeal the appellate court is also under the same pressure from public pressure, UN demands, and potential Cambodian government interference.
In short, the three major challenges of the international staff of ECCC are: external pressure, language barriers, and the discrepancies between the common law and civil law systems. These three barriers seriously affect the procedure of the ECCC in ensuring a fair judgment for both victims and defendants. The delays caused by these challenges can strongly impact the trial; the age of both witnesses and defendants means that inefficiency might ultimately frustrate the purpose of the trial, if defendants pass away before it reaches completion. Theoretically, these shortcomings should be overcome, so that they do not affect the results of the judgment and lead to deadlock. I vigorously hope that their concerns will be tackled as soon as possible, before Cases 003 and 004 are heard, in the pursuit of justice for both defendants and victims.
On behalf of the national interns, I would like express my gratitude for the considerable awareness of the trial process of the ECCC that we gained from the four international staff at the ECCC. The ECCC plays a crucial role in ensuring justice for Cambodian victims and other nationals whose relatives perished during the Khmer Rouge regime. It also acts as a role model for the domestic judicial system in Cambodia to imitate, in order to achieve an independent and impartial judicial system. A fair and independent domestic judiciary would promote justice, the rule of law, and right to a fair trial throughout Cambodia.
Kruy Kimsan, CCHR National Intern