Things have been difficult for the Extraordinary Chambers in the Courts of Cambodia (ECCC), pretty much from the start. The one thing the UN-backed court charged with holding the leadership of the Khmer Rouge responsible for their crimes had going for it was that its first defendant, Kaing Guek Eav, better known by his nom de guerre Duch, admitted his guilt. His trial was therefore supposed to offer the chance for a traumatized nation to hear the truth about what happened under the Khmer Rouge, rather than decide on the merits his guilt or innocence. This is the process that Cambodia has gone through for months as testimony was heard and Duch admitted his responsibility in running one of the most notorious prisons under the Khmer Rouge. That is until Friday, when Duch did an about face and demanded his release due to his innocence of all charges.
To make things even more complicated, his international and local trial teams then offered up two different, and quite contradictory, defenses. His international lawyers asked the court to consider his remorse and limit the possible 40 year prison sentence, while his local lawyers claimed that the court was not competent to hold the trial at all. If nothing else, that’s a pretty big difference of opinion.
As this news story broke, you could almost see international human rights lawyers from around the world just shaking their heads. That is because while shocking, the about face and its aftermath wasn’t really that much of a surprise to longtime observers of the court. After all, the ECCC became much more accustomed to bad news rather than good even before it started holding trials. Duch’s reversal and his trial teams’ floundering was just one more event in a long line of embarrassing storylines to emerge from the court, whether it be political interference, corruption, or just plain incompetence on behalf of court staff.
All ad hoc international courts, whether truly international like the ICTY and ICTR, or hybrids like the Special Court for Sierra Leone and the ECCC, go through difficult times where they must prove their competency, jurisdictional rights, and their ability to produce fair justice. As the FPA’s War Crimes blog shows, this is a constant process. And while things have not always gone smoothly in terms of government cooperation with these ad hoc courts, the one thing that all these court other than the ECCC had in their favor was at least tacit support from the governments most directly involved, whether that be Croatia and Bosnia, or Rwanda and Sierra Leone. The ECCC has never had this; instead it has faced quite the opposite, with Cambodia’s Prime Minister Hun Sen repeatedly making it clear that he rather see the court fail than fulfill their mandate.
Friday’s courtroom drama demonstrated how important such political support is, and how difficult it will be for the ECCC to continue with new trials unless something dramatic changes. While there are many lessons that can be learned from the experience of the ECCC, this one should be first and foremost. In the meantime, it is those who suffered under the Khmer Rouge who stand to lose the most, as their calls for justice are left ignored and abused by those in power.
A new story in the LA Times by Brendan Brady details the problems with the ECCC and what it means for future international hybrid courts.
