Global Policy Forum

By Suzannah Linton

Before commencing on this assessment of the agreement, I must confess that as a foreign observer, I am torn between being happy for Cambodians that they will finally have some accountability for the utter depravity and suffering caused in the Democratic Kampuchea era and at the same time being deeply disturbed that a third rate compromise is all that they have been given. Yet, given that this is what has been agreed after so much trouble, the best way forward must surely be to make the most of it. I therefore offer these comments with best intentions.

Stakeholders and interested parties must do whatever is possible to ensure that this mechanism of accountability brings a modicum of justice to Cambodia and to harness the opportunity of the trials to develop a complementary strategy for desperately needed social repair. Expectations must be realistic. All the wishful thinking in the world is not going to enable the trials of a handful of elderly Khmer Rouge on their own to provide sudden repair to the damage that continues to eat away at Cambodian society. Civil society has a particularly important role in providing support to, but at the same time being a watchdog of, the Extraordinary Chambers project. It also has a vital role in pressuring the Royal Government ('RGC') and the United Nations ('UN') to design and implement the many supporting programmes that will be needed, such as witness protection, psychiatric care, public debate and information/outreach.

Overall, the agreement is an improvement on the earlier draft Memorandum of Understanding. But the core problem is still there, namely the integrity of the process arising from the basic concept of mixed nationality chambers controlled by Cambodian personnel making decisions on the basis of a highly irregular voting mechanism, with two co-investigating judges and two co-prosecutors essentially running separate offices, whose disagreements on investigation and prosecution are to be settled by a panel of judges. Current Cambodian criminal procedure law continues to apply. There remain no provisions for reparations, which is an important issue given that the former Khmer Rouge leaders control significant resources while most Cambodian survivors of their rule live in abject poverty. These matters are not to be papered over with more words about respect for basic norms of human rights - there are already enough such pledges in the Cambodian Constitution and in the Law on Extraordinary Chambers. Unfortunately, the reality is that these fine words are not being implemented in the Cambodian justice system. There is little point in stressing that the key officials are not to take instructions from any Government or outside source if there is no way to enforce that prohibition. In addition, whether or not it was feasible within the timeframe that the parties had, this agreement is haunted by a number of important missed opportunities that could have substantially strengthened the process. And, as Amnesty International has pointed out, the capacity building element of this project is minimal. This is a one-off exercise with no eye on developing the capacity of the Cambodian judicial system.

NGOs have highlighted the potential problem with control of the tribunal being in the hands of Cambodian personnel, given the degree of political influence over them and their professional weaknesses. This situation remains unchanged - Cambodian judges will control the process and the weighted majority formula called the 'Super Majority' applies. The quality of personnel is going to be the factor that makes or breaks the tribunal's contribution to Cambodia if, as surveys suggest, people want a quality process that meets international standards. On the other hand, if Cambodians are actually simply interested in the spectacle of seeing the leaders of Democratic Kampuchea in the dock, then the quality of the personnel or the process is not relevant to them. But I believe that Cambodians want much more than the mere spectacle of a legal process - they want a quality process that is worthy of the losses they have suffered. Here civil society has an enormous role to play in lobbying to ensure that only the finest, most ethical and principled Cambodian jurists are selected to take part. The same must be said for the candidates put forward by the UN. Cambodians have every right to demand that the UN designates only top class international personnel with the necessary experience and unquestionable integrity to the Extraordinary Chambers.

To begin with the less controversial matters, the removal of the appeal court and reduction of the number of judges on the Supreme Court are to be welcomed. The three layer model reflected the structure of Cambodian courts, was cumbersome and would have been unnecessarily costly, given that at the top layer, nine judges were envisaged. The new agreement is that there will be two chambers - a Trial Chamber comprised of three Cambodians and two internationals, and a Supreme Court comprised of four Cambodians and three internationals.

A number of practical amendments like provision for reserve international prosecutors and investigating judges have been made - these are helpful. There has also been clarification of the role of the Office of Administration, which is also welcome. The office is meant to "service the Extraordinary Chambers, the Pre-Trial Chamber, the co-investigating judges and the Prosecutor's office" (Article 7(1)). But it is still not clear if these services include being responsible for witness protection, accused protection, security in the court, filing and circulation of documents, transcription, translation, public information, outreach etc. One would assume so but given the lack of experience with this sort of thing in Cambodia, it would have been helpful for the agreement to have at least spelt out more explicitly what the job of the Office of Administration actually is. Apart from the designated international personnel - the judges, one co-investigating judge plus reserve, one co-prosecutor plus reserve, the deputy director of the Office of Administration and deputy prosecutors - it is still not clear if there will be other international involvement in day to day work. For example, can skilled international investigators with ICTY or ICTR experience be recruited to assist the co-investigating judges or are all the investigators to be from the Cambodian police? What about international legal advisors with specialist expertise in the subject matter?

The UN has dropped its earlier provision which essentially stated that if-we-don't-get-the-money-we-are-backing-out, contained in Article 26 of the draft Memorandum of Understanding. This indicates that it has had behind the scenes guarantees of complete funding for its involvement in the project. Various technical points which really were to do with the UN's internal management of its contribution to the project, such as the Trust Fund, have also been removed from the agreement. And, in light of the troubled history of relations between the UN and the RGC, Article 28 on withdrawal of cooperation is to be expected. This article provides that should the RGC "change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease to provide assistance, financial or otherwise, pursuant to the present Agreement".

There is potentially a problem with Article 9 in the draft agreement which I have examined. It says that the Crimes against Humanity definition of the Rome Statute of the International Criminal Court ('ICC') applies. Either this is a typographical error or the UN and RGC have agreed to change the definition used in the Law on Extraordinary Chambers. The definition in the law itself is akin to the definition of the Statute of the International Criminal Tribunal for Rwanda ('ICTR') with its use of discriminatory intent as a requirement for all Crimes against Humanity and not just persecution. The problem with using the Rome Statute definition is that the crimes which are to be adjudicated by the Extraordinary Chambers took place between 1975-1979. The definition of Crimes against Humanity agreed in 1998 for the ICC was a progressive one that advanced the definitions used in both the ICTR Statute and that of its sister tribunal, the International Criminal Tribunal for the former Yugoslavia ('ICTY'). It is a cardinal principle of human rights law that a person can only be tried, convicted and punished on the basis of conduct that was criminal at the time the act was committed. However, I suspect this is simply a typographical error as Article 2 of the agreement states that the agreement recognises the subject latter jurisdiction as set out in the Law on Extraordinary Chambers, with no comment about changing the definition of Crimes against Humanity.

Not surprisingly, the UN and RGC have agreed to wash their hands of the amnesty/pardon issue. They have passed the buck to the judges. Article 11 repeats the terms of the Law on Extraordinary Chambers ("The Royal Government of Cambodia shall not request an amnesty or pardon for any persons who may be investigated for or convicted of crimes referred to in the present Agreement"). It also adds a sub-clause that crystallizes the RGC's statement that only one person has received a pardon in relation to a 1979 conviction on genocide, and the parties agree that the scope of this pardon is a matter to be decided by the Extraordinary Chambers. Nuon Chea and Khieu Samphan were never convicted so they were never pardoned, and they did not get a legally recognized amnesty from prosecution. The government is now bound not to seek an amnesty from prosecution for them and it is unlikely that the King would draw on his Constitutional powers without such a request. It would therefore seem that the road is theoretically clear to prosecute them.

But the controversy about Ieng Sary will run and run. The following seems a very likely scenario. The international co-investigating judge will want to investigate Ieng Sary and the Cambodian will not. Article 5(4) of the UN-RGC agreement says that if they don't agree they have to proceed with the investigation, unless one of them refers it to a pretrial chamber. Let us assume it is referred to the chamber. Assume the Cambodian judges behave the way that is anticipated and say no investigation of Ieng Sary is possible by international human rights standards and Cambodian law because he was lawfully pardoned, cannot be tried again for what he has already been convicted of. The two international judges would be most likely to take the standard international community position on the 1979 trials and say that the conviction was the result of an illegitimate process that has been near universally rejected as a show trial. They would vote for the investigation to proceed. All judicial decision-making is to be by Super Majority, which means that one of the international judges must agree with the Cambodian judges. So, there will be no Super Majority. This means that under Article 7(4), the investigation or prosecution will proceed. The case will go forward and if there is indeed the hard evidence, Ieng Sary will be indicted. Once indicted/charged, he would probably challenge the jurisdiction of the court (as is his right, and the court should not say the issue has been decided already because the previous decision was only applicable to the investigations and this time it is challenged by the accused), saying he was convicted and pardoned and it is a fundamental violation of his rights to try him again. This time the matter goes to the Trial Chamber itself, which will also have to decide on the basis of the Super Majority. But at this level, there is no equivalent of Article 7(4) to say that the case must proceed if the judges cannot agree on a supermajority. What happens if the three Cambodians say the court has no jurisdiction over Ieng Sary because of the pardon and the two internationals say it does? The Super Majority provision means that without the affirmative vote of four judges, the chamber cannot make a decision. This could lead to the extraordinary situation where the court simply cannot issue a decision that says yes or no on the question of whether Ieng Sary is immune from prosecution because of the pardon.

It is good to see some strengthening of the fair trial and due process provisions. But these are just more words to complement those already in the Law on Extraordinary Chambers (Article 35 of which repeats Article 14(3) of the International Covenant on Civil and Political Rights) and the Cambodian Constitution. The challenge for those working on judicial reform in Cambodia has always been to get fine words implemented in Cambodian courts. As anyone who has worked with Cambodian judges and prosecutors will confirm, they do not like working with general principles of the kind that require them to "exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law" (Article 12(2)). They like 'black and white letter law', technical rules that spell out exactly what they should or should not do. They are extremely unwilling to involve themselves in legal interpretation or extracting practical rules out of abstract concepts. And, in the confused state of Cambodian criminal procedure law, internationals and Cambodians can be expected to have major disagreements on the procedure to follow. The internationals will probably be inclined towards the law drafted by UNTAC (1992 Supreme National Council Decree on Criminal Law and Procedure); the Cambodians will probably say that the SOC Law (1993 State of Cambodia Law on Criminal Procedure) is the one to be followed. In the background there will be mutterings about the French Penal Procedure Code and the Cambodian Constitution. Thus, it is a real shame that the UN and RGC did not explicitly agree to adopt special rules of procedure based on those of the ICTY, ICTR or even the ICC. The UN was able to agree with the Sierra Leone Government that the ICTR rules of procedure and evidence would apply mutatis mutandis to proceedings at the Special Court but the judges would be able to adapt them as necessary. The judges (local and foreign nationals) have already adapted those rules to fit their particular circumstances and the first appearances by accused before the Special Court took place a week ago. Given the circumstances, it is not at all helpful for the UN and RGC to have left it hanging in the air with a phrase like "[w]here Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level". Who decides what that guidance is to be? Going to the judges, whose hands are tied by the Super Majority requirement, may not help. Sometimes one needs more considered interpretation, advice or guidance and not just a yes or no answer.

One particularly serious missed opportunity in this agreement is to do with witness protection and care. Article 23 has been amended but remains weak: The co-investigating judges, the co-prosecutors and the Extraordinary Chambers shall provide for the protection of victims and witnesses. Such protection shall not be limited to the conduct of in camera proceedings and the protection of the identity of a victim or witness. After all the UN's experience with victims and witnesses at the ICTR and ICTY, which has left it with a pool of staff having a wealth of expertise that could be so usefully shared with Cambodia, one would have thought it could have taken responsibility for witness protection or at least committed itself to providing substantial assistance to Cambodia. Instead, the responsibility for witness protection is placed on the co-investigating judges, the co-prosecutors and the Extraordinary Chambers with no mention of any particular role for the UN. So is each of the named parties to design their own mini witness protection programme? Are the Cambodian police obliged to assist in all of this? And, it is not just about witness protection, witness care should also be part of the package - retraumatisation is a very real danger that arises from testifying about horrifying atrocities and personal losses and counselling services are absolutely vital. Surely it is not too late for the UN to give a commitment to assist its Cambodian counterparts in setting up a Victims and Witnesses Unit and provide it with qualified staff?

The provision that legal counsel will be provided if the accused cannot pay has not been altered in this new UN-RGC agreement, and counsel retain their privileges and immunities. An important addition is the provision that the accused has the right to choose his own counsel - which means that foreign lawyers may represent the accused. The accused is no longer limited to Cambodian lawyers. However, the freedom of choice really only applies if the accused is able to pay his own legal costs; if he cannot, he will be limited by the rules of the body that pays the legal costs. For example, at the ICTY and ICTR, indigent accused (those who cannot pay for their own costs) may only choose counsel from a list provided by the Registrar of the court who is the paymaster on behalf of the UN. But the UN and RGC have not addressed the issue of who is going to pay for international or local counsel and provide them with adequate means with which to do their job of defending their clients. What if they need to travel to countries like China and Vietnam to conduct intensive investigations? What if they need to have large quantities of documents translated? Who will pay for foreign counsel to have translators through whom they may communicate with their clients? What assistance can the Extraordinary Chambers provide to defence counsel seeking to obtain documents that parties refuse to surrender to them? The Office of Administration is not made responsible for assisting defence counsel - it helps everyone else including one of the parties (the prosecution) - but not the other party, the defence. The RGC helps everyone else with office premises, but not defence counsel. So, despite the one change, there still seems to be no equality of arms between the parties as required by International Law.

And, the new agreement has still not clarified the question of the defences that can be raised in these trials. Cambodia's current criminal procedure laws, which will apply to the KR Tribunal, do not contain any provisions on defences although the UNTAC Code identifies factors that can mitigate sentence. So what about the 1956 Code which seems to have still be the applicable law in Cambodia during the Democratic Kampuchea era even though it was not applied? And International Law? It is very worrying that accused persons may go to trial not even knowing what defences they are able to rely on, and in which body of law they are to found them. Clarifying this matter would have made a far greater contribution towards fair trial at the Extraordinary Chambers than adding a few more words about the International Covenant on Civil and Political Rights, as was done in Article 12 on procedure. The judges of the International Criminal Court have had almost all the substantive legal issues worked out in advance for them through the court's Statute, Rules of Procedure and Evidence and a document called Elements of Crimes. If ever there was a court that should not be left to its own devices in crucial and complex matters such as identifying the amorphous content of Cambodian and International Law between 1975-1979 or interpreting general principles of law, it is these Extraordinary Chambers. Thus, it seems very strange that substantive issues such as the defences that will apply have not been worked out in advance.

Finally, given the fuss about the status of the UN-RGC Memorandum of Understanding, it is surprising that this new agreement still does not clarify how it formally relates to the Law on Extraordinary Chambers, i.e. the exact legal status and hierarchy between the two. Which should the court look at - the Law on Extraordinary Chambers or the UN-RGC Agreement? It is a bilateral agreement, expressed in very mild terms as simply regulating the cooperation between the UN and ROC on the trials, which is to become law in accordance with normal ratification procedures in Cambodia. But in substance it obviously goes much further with its many substantive provisions on rights of the accused, amnesty, procedure etc, and it of course requires changes to a valid Cambodian law. Article 2 recognizes only a few things in the Law on Extraordinary Chambers - subject matter and personal jurisdiction - leading one to ask if the rest of the law is not recognised? It skirts around the issue of what to do with the Law on Extraordinary Chambers - no matter what the legal position, as a result of this agreement Cambodia will surely either have to amend the Law on Extraordinary Chambers directly or do it via the law approving the agreement. And what if there is a conflict between the two laws? The underlying problem is that the UN and RGC have agreed that certain changes have to be made to a valid Cambodian law passed by the legislature, which was not a party to this agreement. Of course the legislature will probably agree at the end of the day, but the ritual requires pretending that it is not just going to be rubber-stamped (it will be very interesting if they refused to pass it!).

Suzannah Linton practices International Law and has worked on accountability for gross violations of human rights in many countries, as well as at the International Criminal Tribunal for the former Yugoslavia. She worked in Cambodia in 2001/2002, has published several legal studies on accountability for the Democratic Kampuchea era and is currently working on a national reconciliation project with the Documentation Center of Cambodia.

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