Some 100 international prosecutors and legal experts gathered last week in Nuremberg, Germany – site of one of the most famous international tribunals of all time – to attend a legal conference titled Building a Legacy: Lessons Learnt from the Offices of the Prosecutors of International Criminal Tribunals and Hybrid Courts. Khmer Rouge tribunal deputy co-prosecutor William Smith attended the conference, where he spoke to the Post’s Cheang Sokha about the court’s present and its future.
How will the ECCC’s legacy compare to those of other international courts?
We have a hybrid court in Cambodia, compared to the International Criminal Court based in The Hague, so the opportunities and possibilities are different for each of the courts. But the common legacy for all the courts, I think, is the implementation of the end of impunity. I think it starts to help build the rule of law that in those societies have broken down. I think about all the knowledge sharing that has passed on from the internationals that have worked on other courts to Cambodians, and those Cambodian professionals, I believe, will take those skills and apply them in the local courts to assist in increasing the quality of the trials so, [for] the victims and the accused, that idea of justice is met.
Here at the conference they’ve also talked about political influence within the court process. At the ECCC, do you see political influence obstructing your investigation into the case?
I think the answer really is no, in the sense that we have prosecuted, in the first case, the case that we wanted to prosecute. But I think what we can say is in relation to other cases – 003 and 004 – which have four other suspects under investigation, the government has made it clear that they don’t think the investigation of those cases is to the benefit of the country. The Cambodian government knows, and the UN knows, that the agreement they signed is that the lawyers and judges in the court must act independently. So I think there has been political pressure by those [anti-003 and -004] opinions being voiced by particular people in the government. But political pressure and political inference are two separate issues, and I think at this stage, the political interference has not been significant enough for the court not to be able to achieve its mandate. Cases 003 and 004 have been investigated, and we will see what the outcomes of the investigations are next year – whether there is a closing order to indict or a closing order to dismiss, and whether the Cambodian government and international community honour and support whatever those closing orders say.
Evidence hearings in Case 002/01 have just finished, and 002 is still ongoing. Do you fear that these ageing defendants will die before the completion of the case?
Obviously, we would like the judgment to be delivered as soon as possible, but the judgment will be well considered, well researched, so that the findings are correct as far as there is another trial in relation to these two accused. We said that it should be one trial, with the most serious events being prosecuted. That wasn’t upheld in the end, so it’s important that the process continues and we get another trial started. Your age should not be a defence against these crimes. As far as a second trial, the important charges such as genocide and other crimes are still being heard, and it’s important for those communities that these charges are dealt with in the end. It’s not about the end result without a conviction or acquittal, or whether the accused die or stay alive for the process. It’s a question of the process; it’s very important the proper accountability process is done.
Cases 003 and 004 are under investigation, but it seems that the Cambodian side obstructs the process, so do you expect these cases to be heard, and more suspects to be indicted?
I think you are right in the sense that the Cambodian side of the court has not been actively behind the investigation of Cases 003 and 004, that should be clear. But I think it’s too much to say the national side of the court or the government has obstructed the investigation. The investigations are continuing, investigators are going out, speaking with witnesses, collecting evidence – so that investigation process hasn’t been obstructed.
What have you learned from other international legal experts at this conference?
I think one of the main things [is that] the problems that national courts have to deal with in prosecuting large-scale crimes, the problems that international courts have to deal with and the problems that hybrid courts have to deal with, [there are] a lot of similarities between those problems. And so by people sharing their experiences, sharing their ability to overcome the challenges, I think it assists all of us here – from Cambodia, to people in Africa, to people of the international courts – to look at the problems they have and try to find better solutions, or find approaches so that the processes of their own court become more successful. I certainly found it quite educational to pick up other people’s experiences.