Nina Jorgensen looks at the ECCC’s latest trial judgment and the handling of the outstanding cases against the Khmer Rouge regime.

The Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia will deliver its second judgment in the case against Khieu Samphan and Nuon Chea on 16 November 2018 while the investigative phase of cases against remaining suspects is reaching its conclusion.

The courtroom at the Extraordinary Chambers in the Courts of Cambodia (ECCC) has been quiet since the conclusion of the presentation of closing statements in the second trial (Case 002/02) of surviving defendants Khieu Samphan and Nuon Chea on 23 June 2017. The Pre-Trial Chamber heard arguments on Im Chaem’s appeal against the Co-Investigating Judges’ Closing Order (indictment) in December 2017, but these proceedings were held in camera. For the past year, therefore, much of the ECCC’s case work has been carried out beyond the public gaze by considerably reduced teams on account of budgetary constraints.

Public attention is likely to be recaptured by the delivery of the Trial Chamber’s judgment in Case 002/02 on 16 November 2018. The judgment is eagerly anticipated, especially since it is expected to address forced marriage and genocide comprehensively for the first time in the Court’s twelve-year history. Khieu Samphan and Nuon Chea are already serving life sentences as a result of the completed case 002/01, diminishing the retributive value of any further punishment in the event of convictions. However, the proper legal characterization of the facts relating to crimes of sexual and gender-based violence and the targeting of specific groups remains of utmost importance for the victims of the Khmer Rouge atrocities.

The silent courtroom belies two significant developments in the second set of cases put forward for investigation by the International Co-Prosecutor in 2009. First, on 28 June 2018, the Pre-Trial Chamber rendered its decision on the controversial issue of the ECCC’s personal jurisdiction in Im Chaem’s case. While the National and International Pre-Trial Chamber Judges were split over the outcome, some notable parts of the reasoning were issued jointly. Secondly, on 16 August 2018, the Co-Investigating Judges for the first time issued two separate Closing Orders in the case against Ao An. The International Co-Investigating Judge decided to commit Ao An for trial while the National Co-Investigating Judge decided to dismiss the case altogether.

The ECCC’s personal jurisdiction is limited to the categories of ‘senior leaders of Democratic Kampuchea’ and ‘those who were most responsible’ for the serious crimes committed during the Khmer Rouge era. The principal basis for a long-standing disagreement between the International and National components of the Court has been the interpretation of these phrases. The Co-Investigating Judges were united in determining that the ECCC lacked jurisdiction over Im Chaem, leading to an appeal by the International Co-Prosecutor. The International Judges of the Pre-Trial Chamber found Im Chaem to be amongst the most responsible and therefore within the ECCC’s personal jurisdiction while the National Judges upheld the decision of the Co-Investigating Judges. However, the two sides converged in their assessment of the capability in principle of the ordinary Cambodian courts to hear cases involving Khmer Rouge era crimes. This issue was addressed as one of general significance for the ECCC’s jurisprudence and legacy since the Co-Investigating Judges had excluded the possibility. The Pre-Trial Chamber considered the pertinent question to be whether the establishment of the ECCC precluded or overrode national jurisdiction in respect of Khmer Rouge era crimes and found that national courts enjoyed inherent jurisdiction over all criminal cases with which the ECCC was not seized. The International Judges took this further in their separate opinion and indicated that the lack of consensus within the ECCC over Im Chaem’s case should not prevent proceedings before a national court.

In his Closing Order at the conclusion of the investigation into Ao An’s conduct, the International Co-Investigating Judge commented on what he described as the Pre-Trial Chamber’s obiter dicta on the question of the ECCC’s exclusive jurisdiction. In his view, accepting a residual jurisdiction of the domestic courts in fact made it easier for the Co-Investigating Judges to find that they lacked personal jurisdiction because to do so would not risk leaving an impunity gap. While the Pre-Trial Chamber’s conclusion on the narrow question addressed appears correct, the discussion reflects a deeper concern about the ECCC’s ability to ensure complete and meaningful justice in respect of the Khmer Rouge period. Domestic proceedings, unlikely as they are, could cause the question of the statute of limitations that has stalled any prosecution of the domestic offences under the ECCC’s jurisdiction to resurface.

The unprecedented decision by the two Co-Investigating Judges to file separate, contradictory orders in Ao An’s case appears as a strategic move in the interests of efficiency. The alternative would have been to file a disagreement to be determined by the Pre-Trial Chamber, but that Chamber might have failed to reach the super-majority required for a binding resolution of the disagreement. The parties are currently awaiting translations of the two orders before initiating appeals before the Pre-Trial Chamber. Any such appeal is likely to raise challenging questions concerning the ECCC’s structure and the regularity of its procedures, the rights of the defendant and the rights of victims.

While all interested eyes will soon be on the ECCC’s latest trial judgment, the proper handling of the outstanding cases remains important for the Court’s legacy. It is relevant to consider the extent to which a protracted two-tiered judicial investigation is itself a contribution towards justice even if no further trials ultimately take place.

Nina H.B. Jørgensen, Professor, Faculty of Law, The Chinese University of Hong Kong.

Her book, The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia is out now. The first chapter is free to read on Elgaronline.