It was some 22 years before today’s final closing arguments in the Khmer Rouge tribunal’s Case 002/01 that Craig Etcheson first began lobbying the US government to investigate the crimes of the regime’s most senior surviving members.
Back then, there was no Khmer Rouge tribunal in Cambodia, no Khmer Rouge archives and, as he tells it, not much in the way of paved roads either.
Over the course of the intervening decades, however, Etcheson co-wrote and secured the passage of the Cambodian Genocide Justice Act in the US Congress, co-founded the resulting Cambodian Genocide Program and served as the chief investigator of the fledgling tribunal’s Office of the Co-Prosecutor.
Though no one person can be said to be responsible for the Khmer Rouge’s leaders being brought to justice – least of all Etcheson, as he is careful to note – Etcheson’s work was undeniably important in getting the effort under way.
Since those days, however, the Extraordinary Chambers in the Courts of Cambodia has gone through scandals and scrapes of every stripe, weathering accusations of corruption, foot-dragging, government meddling and disdain for defendants’ rights, in addition to perennial budget woes – budget woes that cost Etcheson his job in June 2012, when his department was eliminated from the Office of the Co-Prosecutor.
Even though the court today will finish closing arguments in the first segment of its flagship case, Case 002, proceedings are still far from over.
The process has outlived its estimated three-year duration by four years, and even outlived one of its defendants, Ieng Sary.
Another defendant, Sary’s wife, Ieng Thirith, was found unfit to stand trial due to advanced dementia, and the two remaining defendants – Nuon Chea and Khieu Samphan – are both in their 80s.
However, despite all its flaws – of which Etcheson admits there were many – after returning to Cambodia to watch the closing arguments in Case 002/01, things have still gone surprisingly well, he says.
“I anticipated a lot of confusion and misunderstanding, and that anticipation has proved correct,” Etcheson said. “I expected that the biggest problem was going to be able to get people to just talk to one another, not even to mention understand each other. But in the end, I think it’s gone better than I anticipated.”
What he may not have anticipated in the early days was just how difficult it would be to gather evidence, a job that was easier said than done and, at times, “dangerous and scary”.
Nonetheless, in his work for the CGP and the Documentation Center of Cambodia, Etcheson spent years “interviewing everybody we could get our hands on”.
Through an initiative called the Mass Grave Mapping Project, Etcheson and his team found about 200 Khmer Rouge security centres, and some 20,000 mass graves.
The research “ultimately became inputs to the trial process”, and were followed up on and verified by the court’s Office of the Co-Investigating Judges.
In 2006, one year after the agreement to establish the Khmer Rouge tribunal went into effect, Etcheson left DC-Cam – having already resigned from the CGP in 1997 – and became lead investigator for then-international co-prosecutor Robert Petit while establishing the Office of the Co-Prosecutors.
The court’s problems began almost immediately.
“There was a tremendous amount of misunderstanding and distrust between the government and a lot of their international interlocutors over the course of the negotiating process,” Etcheson said of the court’s structuring.
Though the structural decision-making was “way above [his] pay grade”, Etcheson was there observing the process all the way through.
According to Etcheson, the negotiations ultimately yielded some ambivalent decisions, such as establishing the court in Cambodia along a “hybrid” international-national scheme, which gave citizens an opportunity to see justice done, but also resulted in delays and higher costs.
There were also, he maintained, some very “messy” decisions, enough fodder for “three or four books”.
Perhaps the single greatest misstep, however, was basing the court on the civil law system, in which the court’s indictment is ultimately investigated and written by investigating judges, rather than prosecutors, he said.
That and the system’s potential for near-endless re-arguing of issues, meant that the court had already spent roughly a third of its estimated three-year lifespan simply compiling the charges.
“An indictment isn’t prepared one time, it’s prepared three times,” Etcheson said.
“The prosecutor then is charged to carry an indictment into court that he didn’t prepare, and may or may not agree with, and that, believe me, introduces all sorts of excitement. In a trial of this complexity, scores and scores of issues are litigated, but they’re not litigated once or twice or three times, but often in quadruplicate.
“This is all to say that these and other features of the civil law system, especially for cases as complex as this, just create unnecessary layers of duplication and time consumption, which is especially important in a case where you have geriatric defendants who are liable to die off on you before the process has reached finality.”
Though Etcheson declined to delve into the prosecution’s problems with the documents, many of which are confidential, he said, “suffice it to say that the co-prosecutors were not entirely happy with the closing order”.
The problems and delays created by the use of the civil law system were almost compounded by the severance of the closing order into smaller, discreet sub-trials, a decision that had the effect of endlessly stretching out an even smaller number of charges, he said.
The decision to break such a huge trial into manageable pieces was perfectly understandable, Etcheson noted, but with defendants getting ever older and more infirm, “I think they may have also underestimated how long it would take to get through even a piece of it”. “So that now, years on into Case 002, with the majority of the allegations still not tried, the defendants are getting older and older and expiring, from one cause or another, from the process, and the donors are showing advanced signs of fatigue,” he continued.
“And so for all those victims, and anyone interested in the larger goals of justice, that was an opportunity lost.
“I fear we’re in danger of a similar lost opportunity here.”
There have been other problems too, according to Etcheson. He characterised the defence’s insistence on dredging up politics as obstructionist, but echoed their stance that the court’s failure to call witnesses in the current government – such as National Assembly President Heng Samrin – was “unfortunate,” albeit for different reasons.
“They would have been the deadliest possible witnesses against those guys,” he said.
Either way, he continued, the failure to call them did undermine the court’s legacy as a model of impartiality to Cambodia’s domestic courts, “and that’s problematic”.
The civil law system’s reliance on investigating judges also resulted in some less-than-satisfactory methods in the investigation phase, a process of the tribunal that the defence has long sought to impugn, but which they have not been allowed to discuss in court.
For example, co-investigators flatly refused to provide exact transcripts of interviews with potential witnesses, instead offering only written summaries known as a proces verbal, summaries that the defence has criticised as being selective and biased. The incomplete summaries also served to make the prosecution’s job more difficult, Etcheson said.
“What is perhaps not generally recognised is that the prosecutors have had a lot of issues with various aspects of the way the system has functioned as well,” he said, noting that, nonetheless, they didn’t “rise to the level of meriting a mistrial”.
But despite all the shortcomings, Etcheson said, it would be reductive to write off the court as hopeless, adding that it was surprising enough that it ever came into being in the first place.
“If you were here in the early days, there was great doubt that we were ever going to see the inside of a courtroom, and indeed we did,” he said. “The Duch trial went reasonably well, and if you’ve been sitting and watching what’s going on in the courtroom over the last year, hey, it looks like a trial.”
What’s more, he added, even the subject of the tribunal’s legacy as a model to domestic courts – which has long been an object of scepticism among observers – isn’t beyond saving.
The court has already single-handedly introduced the idea of jurisprudence to Cambodia, Etcheson said, and even if Cambodian judges’ behaviour isn’t currently “like something you would see in Geneva, Switzerland,” the lessons will need time to gestate.
“Twice in the last two weeks, the gallery in the courtroom has been almost completely filled with students from the Cambodian School of the Magistracy, Cambodia’s training ground for future judges, investigating judges and other court personnel,” he said.
“They were watching what was going on with rapt attention. I can’t believe this will have zero influence on how they think and act over the course of their careers.”
After two weeks of closing statements, Etcheson also reflected a little on his own legacy, both the good and the bad.
For all the nit-picking, he said, the court has gone largely as it should. The prosecution managed to pull together the threads of a wildly complex case, the civil parties delivered an “eloquent” summation of victims’ suffering, the defence understandably highlighted the problems in the process, and the judges kept their professionalism throughout.
However, he added, there is “a regret that this has taken so long, and that some of our contestants are no longer here to participate”.
And given the delays, he said, “it will be quite surprising if this court winds up finally trying all of the allegations, and if they don’t, that will be a serious blemish”.
All the same, he continued, it would still take time for him to “sort through what it all adds up to”.
“I haven’t come to rest on that yet, and the process has yet to run its course, so that remains to be seen.”
But if the chamber, two years from now, is hearing closing arguments in Case 002/02, he added, “I’ll be here”.