The ECCC – balancing expeditiousness and meaningful justice
The ECCC has issued a decision on why the severance of the trial against the most senior Khmer Rouge leaders is in the interests of international justice. The question remains however whether a verdict will be as satisfactory as the Chamber assumes.
In September 2011, only two months prior to the start of the trial against the last surviving leaders of the Khmer Rouge, the Trial Chamber of the joint UN-Cambodian Tribunal, the ECCC, issued a severance order separating the proceedings in an unspecified number of smaller trials. The scope of the first trial was restricted to only one of five country-wide criminal policies for which Khmer Rouge leaders were held responsible, namely crimes related to the forced movement of the population of Phnom Penh beginning on 17 April 1975, the subsequent forced movement of the population to the north of the country between September 1975 and 1977, and associated crimes against humanity. The remaining charges, including religious persecution, torture at security centers and genocide, were to be addressed at successive mini-trials.
In February of this year, the Supreme Court Chamber annulled the severance order and ordered the Trial Chamber to reconsider the severance after hearing all parties and balancing all interests concerned. The Prosecution and Civil Parties consistently sought to expand the scope of the first trial segment, as the current scope of the trial was insufficiently representative of the complete indictment and successive trials were not deemed likely due to the deteriorating health of the accused. The Defense argued that only a decision on the totality of the charges would safeguard the rights of the accused, noting that the partial inquiry was aimed at reaching a finding of guilt based on only a fraction of the evidence.
In response to the Supreme Court’s decision, the Trial Chamber issued a reasoned decision regarding the controversial severance order on 26th of April. According to the Trial Chamber an addition of charges would risk a substantial or indeterminate prolongation of trial proceedings and could therefore affect the Chamber’s ability to render a timely verdict. This pragmatic approach is induced by the many setbacks the tribunal has faced since it started operating in 2004. Having spent 170 million dollars, the tribunal has thus far completed only one case, against a midlevel cadre who served as the head of the regime’s most notorious security center.
In 2007 investigations in the current case officially started against the four highest surviving Khmer Rouge leaders. To this day, one accused was found unfit to stand trial due to Alzheimer’s disease and subsequently released, another accused recently passed away and only two (aged 86 and 81) remain on the docket, though both are in uncertain health and were recently hospitalized. Furthermore, it is believed the tribunal will shut down after completing the current case since the investigations into two other cases against five former Khmer Rouge senior officials have been marred by political interference from the Cambodian government.
Although expeditiousness and ending impunity for Khmer Rouge crimes may be valid concerns, separating the charges of what was to be the biggest trial since Nuremberg undermines the rights of the victims and accused alike and disregards an important purpose of international criminal justice; namely to establish an accurate account of historical facts. As the director of the Documentation Center for Cambodia, and one of the survivors of the Democratic Kampuchea era, puts it: ‘the UN and the Cambodian government made a promise to punish the perpetrators of genocide. The victims deserve closure.’
The ECCC will likely shut down without ever having considered the purported genocide committed by the Khmer Rouge. In the event that this occurs, the ECCC will fail its mandate leaving the victims without closure or justice.