by Mikkel Jarle Christensen, associate professor in law at iCourts, and Astrid Kjeldgaard-Pedersen, assistant professor in international law, Faculty of Law, University of Copenhagen

More than 1.7 million Cambodians perished during the Khmer Rouge’s attempt to create the perfect communist society between 1975 and 1979. On 23 November 2016, the Appeals Chamber of a special court in Phnom Penh delivered the final verdict in the case brought against the leaders of the Khmer Rouge who are still alive. The Court is not only racing the clock due to the advanced age of the main accused. It is also challenged by its unique legal foundation comprising an unprecedented mix of national and international criminal law. The recent appeal judgment marks the end of consensus between the Court’s international and national staff, and the Court now faces significant challenges. Of central importance is how the Court will manage its Cold War heritage, which was a key factor when the UN and the current political elite of Cambodia negotiated the creation of a new type of hybrid judicial body. The political compromise that set up the special Court and shaped the legal framework within which it operates may prove to be its Achilles heel.

Hybrid Court Created by the UN and Cambodia

The Extraordinary Chambers in the Courts of Cambodia, the ECCC, is the result of an agreement between the UN and Cambodia settled in 2003. Under the terms of this agreement, the purpose of the Court is to prosecute the “senior leaders” and those who were “most responsible” for the crimes committed during Khmer Rouge’s reign between 1975 and 1979. The legal foundation of the ECCC differs significantly from that of other international criminal courts, including the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. A principal trait is that the ECCC is not located in The Hague, self-proclaimed “international city of peace and justice”, but in the country where the crimes were perpetrated. While this of course brings proceedings closer to local communities, the physical location of the Court is in fact a symbol of the divide between the national and international staff who occupy it. Pursuant to the agreement with the UN, the ECCC was to be placed in Phnom Penh but the Cambodian authorities ended up rebuilding an old military compound at least 90 minutes outside of the main city, in the rainy season often longer. Two diverging explanations for the location on the outskirts of Phnom Penh exist. Among international staff, for whom the daily commute is a constant tangible irritant, the narrative goes that the Cambodian government purposefully moved city limits to be able to place the ECCC far from the city center. Among representatives for the government of Cambodia, the story is that no suitable premises could be found in Phnom Penh proper, and that “city limits move all the time”. The two conflicting accounts for the Court’s location mirror the precarious structural position of the ECCC. The Court is a part of the national Cambodian court system, but it is heavily influenced by its international staff, who unlike their national counterparts work full time on the Khmer Rouge trials. It also reflects the larger political context in which the Court operates. Conflicting international and national perspectives on criminal justice, which heavily influenced the negotiations for the ECCC, remain a very real element in the proceedings of the Court. The current Prime Minister of Cambodia, Hun Sen, who took office in 1985, was a member of the Khmer Rouge until 1978 as was the elite around him. A close eye is therefore kept on the work of the ECCC, especially on how far the Court intends to extend its jurisdiction and its conceptualization of who the “most responsible” are.

The Khmer Rouge and the Cold War

The Khmer Rouge took power in Cambodia in April 1975 by leading a rebellion against the US supported Lon Nol who in 1970 had ousted King Sihanouk. US support to the regime of Lon Nol was intimately linked to the war in neighboring Vietnam, and the Khmer Rouge were created as a division of the Viet Cong in 1968. Besides supporting a military regime in an attempt to fence in the spread of communism in Indochina, the US initiated a massive bombing campaign against Cambodia. It is estimated that more US bombs were released over Cambodia between 1965 and 1973 than by the same military during the Second World War. More than 150.000 people are believed to have died in the course of this campaign. This political context meant that the Khmer Rouge were not without public support when their leader Pol Pot and his troops took Phnom Penh in 1975. However, the support of the people, which was also predicated on the Khmer Rouge’s alliance with the exiled king, would soon dissipate. Three hours after taking over the capital, the new regime began deporting its inhabitants. With the goal of creating the ideal communist society, the Khmer Rouge aimed to eliminate “new men” corrupted by city living, intellectualism and capitalist ways of life to build a new society instead on the “old people”, i.e. the rural population. Implementing a systematic policy of displacing people to rural areas, splitting up families and designing new ones through forced marriages, the Khmer Rouge’s policy had disastrous consequences. In the following almost five years, nearly a quarter of the population would perish. In part as a result of the attempt to rid the new society of any subversive forces, and partly because of catastrophic living conditions brought about by the large scale relocation policy as well as refusal to let time-honored forms of education and professional knowledge guide schooling, hospitals or farming practices.

In terms of external affairs, the Khmer Rouge would quickly head towards a collision with the main regional power, their previous allies in Vietnam. Although the leadership of the Viet Cong would repeatedly try to negotiate with the regime in Cambodia, Pol Pot and his nearest associates remained aloof in so far as they troubled themselves with actually answering the diplomatic communications of Vietnam.  As a reaction to repeated Khmer Rouge attacks on Vietnamese civilians on both sides of the border, the vastly superior Vietnam military invaded Cambodia in late 1978 and quickly pushed Pol Pot’s forces into the Western border region towards Thailand. On the basis of this situation, Cambodia became part of a geopolitical game formatted by the power balances of the Cold War. The US and other Western states were worried about Vietnamese dominance of Indochina and now supported the Khmer Rouge. Alongside China (a main supporter of the Khmer Rouge) and using Thailand as its main intermediary, the Khmer Rouge were rebuilt and remained the designated representatives of Cambodia to the UN until 1997. It was not until this point in time – 8 years after the fall of the Berlin Wall – that the international community acknowledged the crimes committed during the Khmer Rouge regime. When the Hun Sen government asked the UN for support to establish a judicial body that could prosecute of main perpetrators, it therefore hit a sore spot for the organization. On the one hand, the UN had been active in the creation of international criminal courts since the early 1990s, setting up ad hoc tribunals for the former Yugoslavia and Rwanda and assisting in the creation of the permanent ICC. But on the other hand, the UN had been complicit in supporting the Khmer Rouge for 19 years. Neither the world organization nor the Cambodian government involved in the negotiations was completely free of the past. The political compromise that paved the way for the realization of the ECCC bears the clear mark of a conflict between international conceptions of justice and the attempt of the domestic power elite of Cambodia to maintain control with what remain deeply sensitive cases.

The negotiation of a new type of court

When visiting the ECCC, one thing is particularly striking: At all levels of staff, the Court is split between international and national lawyers. Only a small number of the “nationals” (as they are called) speak English and they also remain part of the domestic Cambodian justice system working on other types of cases. The “internationals”, on the other hand, work full-time as UN employees on investigating, prosecuting and adjudicating criminal responsibility for genocide, crimes against humanity, war crimes and a number of crimes covered by the Cambodia criminal code. As explicated in the legal foundation of the ECCC, the decisions of the Court must be made in concordance with the so called “super majority”. In practice this means that at least one of the “internationals” must vote in favor of a decision for it to have legal force. At the same time, the Cambodian authorities are obliged to implement measures related to the investigation that are unilaterally adopted by the “international” prosecutor. This has given rise to some controversy in particular when the international prosecutor tried to call leading politicians as witnesses. Senior public officials refused to give testimony and the order was never executed.

The institutional design of the ECCC is the result of half a decade of negotiations between the UN Office of Legal Affairs and the government in Phnom Penh. Not surprisingly, the most contentious issue was who would ultimately control the ECCC. UN lead negotiator, Swedish diplomat Hans Corell, stood firm on international dominance while the government in Phnom Penh insisted on tight national management of the Court and its proceedings. In 2002 the UN controversially withdrew from the negotiations, but an alliance between the office of US Secretary of State and the government of Cambodia would force Hans Corell and his team back to the table. This alliance was driven by Bill Clinton’s Secretary of State, Madeleine Albright, who headed an office devoted to international justice, in which central officials had close personal and professional ties to Cambodia. Through parallel sessions in a hotel facing the UN building in New York, a resolution was drawn up that forced the UN Office of Legal Affairs to recommence negotiations. With this move the power balance tipped in favor of the Cambodian government. Even if the compromise created a system of super majority, the daily work of the ECCC hinges on government participation. The recent Appeal Judgment may very well be the last fairly simple ruling of the Court. Relations between the international and the national staff are likely to become increasingly more strained in the coming cases.

Legal choices under politically sensitive circumstances

The ECCCs first case (case 001) regarding the director of the infamous Tuol Sleng prison (also known as S-21), where the regime’s own supporters were purged in fear of CIA, KGB and Vietnamese infiltration, was relatively uncontroversial. Especially since the accused, Kaing Guek Eav alias ”Duch”, cooperated with the Court and appeared to show remorse for his crimes. Case 002 – of which a significant part is finally decided today – is more problematic. Originally, here were four accused in case 002, all senior members of the Khmer Rouge. Two of them, Ieng Sary and his wife Ieng Tirith, died in 2013 and 2015 respectively. The other two, Nuon Chea and Khieu Samphan, are presently 90 and 85 years old. Because of the ageing defendants and the complexity of the case, it was decided at an early stage in 2011 to divide case 002 into two parts. The first part (case 002-01), which primarily concerns crimes against humanity and war crimes, reached its final conclusion on 23 November 2016 when Noun Chea and Khieu Samphan were sentenced to life imprisonment. The Appeal Judgment also effectively marked the end of consensus between “the internationals” and “the nationals”. Ahead lie a number of politically sensitive cases. First of all, Nuon Chea and Khieu Samphan are also charged in case 002-02, which includes genocide against the Muslim Cham and the Vietnamese minority in Cambodia. Although the Khmer Rouge killed about one quarter of the Cambodian population, they were not legally speaking committing genocide as this crime by definition does not include the elimination of political opponents, but only groups defined by nationality, ethnicity, race or religion.

Even more politically contentious proceedings await in cases 003 and 004, which are currently being investigated by the international prosecutor in spite of the national prosecutor’s persistent objections. The legal framework of the ECCC is construed so that investigative and prosecutorial efforts may continue as long as there is no majority against them. As mentioned, such a majority requires that at least one “international” vote in addition to the votes of the “nationals”. But cases 003 and 004 cannot, of course, lead to a conviction without the consent of the national judges. In comparison with the defendants in case 002, the accused in cases 003 and 004 held positions at a significantly lower level within the Khmer Rouge. Formally, the disagreement concerning cases 003 and 004 turns on whether the accused may be categorized as “senior leaders” or “most responsible” for the Khmer Rouge’s crimes and thus fall with the legal mandate of the Court under the agreement between the UN and Cambodia. In reality, it is presumably a cause for concern in the Cambodian government that relatively low-ranking members of the Khmer Rouge face trial before the ECCC. Firstly, there are numerous former Khmer Rouge members at corresponding levels of leadership which the ECCC would be equally justified in prosecuting. Secondly, we would not have to go much further down the Khmer Rouge chain of command before we would find individuals who are now in power.

International criminal law in uphill struggle

In the proliferation of international criminal courts and tribunals since the mid-1990s, the ECCC stands out as bearer of the most obvious mark of the Cold War. The Superpowers – the US, the USSR and China – as well as the UN all participated actively in the dispute revolving around the Khmer Rouge, whose remaining leaders will receive their final verdict today. The disagreement between the national and international staff of the Court is not only from a local perspective a key aspect of the legal aftermath of the regime.  The international/national divide is also emblematic for the field of international criminal law, which grew out of the euphoric atmosphere following the end of the Cold War, and which – while simultaneously insisting on justice – often concealed the active role of changing political alliances in regional conflicts.

Although two of the senior leaders of the Khmer Rouge will most likely be convicted by the Appeals Chamber of the ECCC today, the Court’s future remains uncertain. The same holds true for international criminal law generally, which is presently divided between an international market for lawyers specializing in genocide, crimes against humanity, and war crimes and growing domestic skepticism against this kind of legal practice. This fall, the gap became particularly apparent when South Africa, Burundi, and Gambia and later Russia announced their withdrawal from the International Criminal Court in the Hague. Like the Court in Cambodia, these denouncements indicate that international criminal law may likely prove to be an isolated international phenomenon, which will not yield domestic resonance. The future cases of the ECCC will be the next significant test, not only as regards the definition of the “most responsible” among the Khmer Rouge, but also for the much wider prospects of creating a legal framework that will ensure the end of impunity for the most horrific crimes.