On Tuesday, the ECCC resumed its proceedings in the case against Nuon Chea.
On December 21, the Post published an article in which Nuon Chea’s lawyers, Andrew Ianuzzi and Michiel Pestman, cited “government interference” as a reason for stepping down as defence attorneys for Nuon Chea.
This may have given your readers the impression I, Nuon Chea’s third international lawyer, had left the team for the same reason. This is not the case; I am leaving the ECCC purely for personal considerations.
This is not to say I don’t think the ECCC is a troubled institution.
It was meant to function as a model court that would demonstrate to the Cambodian people and legal professionals how a fair trial with independent judges is conducted, which would, in turn, improve the quality of domestic legal proceedings.
In the six years the ECCC has been plodding along, however, NGO reports confirm that the human-rights situation in Cambodia has deteriorated rather than improved.
What went wrong? Among other things, the ECCC is failing to live up to expectations in a highly troubled country.
Political prosecutions such as that of Mom Sonando, as well as politically motivated refusals to prosecute, as in the case of Bavet governor Chhouk Bandith, show the Cambodian judiciary is anything but independent from the government – and that Cambodian People’s Party officials are accountable to no one but Hun Sen.
One might think these cases are unrelated to the ECCC, and that therefore there is no role for the ECCC to play. This is not true.
First of all, staff members at the ECCC should realise that the ECCC forms an integral part of Cambodia’s court system.
Cambodian judges in domestic courts who are convicting innocent people on trumped-up charges are therefore our direct colleagues, whether we like it or not.
Remaining silent with respect to their actions leaves the international staff at the ECCC effectively complicit in them.
Second, the ECCC should be a forceful champion for the independence of the judiciary and for accountability under the law of all citizens, regardless of their position.
At the moment, it is simply not fulfilling that role. The proceedings in cases 003 and 004 show that Cambodian prosecutors and judges toe Hun Sen’s political line, making a mockery of the model of an independent judiciary.
Moreover, senior government figures such as Heng Samrin and Chea Sim have ignored court summonses issued by the ECCC in Case 002, directly undermining the ideal of all citizens’ accountability to the courts.
Not a single judge at the ECCC, international or Cambodian, has dared tackle this issue head-on.
The message being sent to the Cambodian people by this silence is that some people are above the law. In other words, it’s a message of impunity — exactly the opposite of the message the ECCC was supposed to send by prosecuting former Khmer Rouge leaders.
The picture the Cambodians are left with is clear: even a heavily monitored court backed by the United Nations cannot provide this country with accountability of government officials and a truly independent judiciary.
One doesn’t need to be a legal expert to realise what this means for the future: the Cambodian tradition of impunity will continue, long after the ECCC has packed its bags.
The only difference may be that Cambodian legal professionals, trained at the ECCC as part of the capacity-building mandate, will be better able to cloak outcomes pre-cooked by the government in more sophisticated legal lingo.
International staff members at the ECCC will, in private discussions, admit the ECCC is not a perfect institution and that the Cambodian political context in which it functions is highly problematic.
However, their reasoning goes, this flawed court is the best we can do in present-day Cambodia; if we want any accountability for Democratic Kampuchea-era crimes, we need to compromise on some issues.
Although I respect that position, I do think t no compromise should ever be made on the independence of the judiciary and the accountability of all to the court.
This is especially true in Cambodia, where the right example necessarily must come from the only professionals who have little to fear from Hun Sen: the internationals.
I wish the ECCC the best of luck in its future proceedings. But, most of all, I wish for it not to hesitate to publicly antagonise Hun Sen’s government if the interests of law so require.
The international judges and staff members can afford to do so, and would thereby provide valuable assistance in the development of the rule of law in Cambodia.
To date, however, the ECCC has been too content to function as an expensive figleaf for Hun Sen’s corrupted judicial system, contributing very little to the actual improvement of the human-rights situation in this country.
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The views expressed above are solely the author’s and do not reflect any positions taken by The Phnom Penh Post.