Global Policy Forum

During the first half of 2005, donor states have contributed substantial sums to the cost of creating the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (ECDK). The Chambers' imminent establishment is a welcome step toward legal accountability for up to two million victims of the 1975-79 genocide. Although funding for the Cambodian government's share of the budget is yet to be fully secured, it is not too early for the Group of Interested States (GIS) to turn its attention to a number of outstanding issues concerning the composition and operation of the ECDK. How these matters are addressed will determine the effectiveness, fairness, and impact of the trials in Cambodia and beyond.

By design, the Extraordinary Chambers is part of the Cambodian judicial system, with Cambodians constituting a majority of its judges and legal staff. Nonetheless, as Prime Minister Hun Sen and others have repeatedly affirmed, Cambodia requires international resources and expertise. Crimes of this magnitude are of concern to all humanity. The international community has an interest and a responsibility to ensure that they are prosecuted and tried credibly. In particular, the Group of Interested States, including those donors who have contributed virtually all of the ECDK's funds, must monitor closely the tribunal's establishment and operation, and act expeditiously to remedy any problems that threaten the integrity of the proceedings.

The following are priority issues of concern: the selection of judges and prosecutors; creation of an oversight committee; internal regulations; investigative capacity; outreach; training; defense; protection of victims and witnesses; accounting system; and legacy issues.

Selection of Judges, Prosecutors and Other Staff

The Agreement between the United Nations and the Royal Government of Cambodia2 and the 2004 Law on the Establishment of the Extraordinary Chambers3 lay out a general framework for the selection and appointment of judges and prosecutors. The Supreme Council of the Magistracy makes all final selections. For international positions, it chooses from among nominations provided by the UN Secretary General. For Cambodian posts, the Supreme Council of Magistracy is empowered to make its own choices with no international involvement. Cambodian staff will be chosen by the ECDK's Director of the Office of Administration (a Cambodian national, under Article 30 of the Law) and selected from "Cambodian civil servants or other qualified nationals of Cambodia, if necessary."

The precise standards by which international and Cambodian judges, prosecutors and other court staff are selected and appointed, however, are currently unclear. The experience of other international criminal justice mechanisms underscores the importance of a transparent and fair appointment process for both international and domestic judges and prosecutors. At a minimum, judicial vacancies should be publicly disseminated, applications rigorously reviewed, and representatives of civil society organizations and the bar broadly consulted. Above all, the method of judicial selection must both be, and appear to be, free of partisan political considerations. The resulting quality of both Cambodian and international judges and prosecutors—the Agreement makes clear they must be of "high moral character, impartiality and integrity"—is the single most important factor in securing sound prosecutions, fair trials, and due process.

On June 30, 2005, the United Nations sent a letter to each of the U.N. diplomatic missions based in New York requesting States to nominate international judges, an international co-investigating judge, and an international co-prosecutor. Circulating this request to the community of civil society organizations following the ECDK will help identify the best candidates from as broad a pool of nominations as possible.

The United Nations should also make the nominations public well before the Secretary-General makes his final selection. This will facilitate robust scrutiny of international candidates, and help ensure due consideration of factors such as knowledge of international humanitarian, human rights and/or criminal law, and adequate gender representation. The experience of judicial selection for other international and hybrid tribunals has shown the value of public participation in producing a quality court. If the international appointments adhere to a fair, inclusive, and transparent process, this can serve as a model for the appointments to be made by the Royal Cambodian Government.

On the Cambodian side, the Deputy Prime Minister and head of the Khmer Rouge Tribunal Taskforce, His Excellency Sok An, announced this spring: "[W]e are currently drawing up detailed criteria for the selection of the best possible individuals for appointment to these highly trusted positions."

The government should publish these criteria as soon as possible, and well in advance of the actual selection. As with the international selection process, the national nomination and selection processes for the Cambodian judgeships, the co-investigating judge, and the co-prosecutor positions should also be open to local and international scrutiny, including that of civil society.

The Cambodian Supreme Council of the Magistracy should disclose the final list of international and local candidates to the public. Broad-ranging and open consultations should be undertaken before the final selections are made.

Creation of an Oversight or Compliance Committee

The Group of Interested States should consider the creation of a coordinating body of donors, together with the Cambodian government and the United Nations, to oversee the non-judicial policy, financial, and administrative issues confronting the tribunal. Building on the experience of the management committee for the Special Court for Sierra Leone (SCSL), this body could act as an oversight mechanism and instrument of support in the international arena to ensure that the ECDK's operations run effectively and efficiently.

Legal and Procedural Issues — Internal Regulations

Article 12 of the Agreement provides that:

[T]he procedure [to be used in the ECDK] shall be in accordance with Cambodian law. Where Cambodian law does not deal with a particular matter, or where there is uncertainty regarding the interpretation or application of a relevant rule of Cambodian law, or where there is a question regarding the consistency of such a rule with international standards, guidance may also be sought in procedural rules established at the international level.

Greater clarity on Cambodian procedures is needed, and NGOs and independent experts should have an opportunity to provide input into the development of the ECDK's Rules of Procedure and Evidence (RPE) before the start of the tribunal's operations. Cambodia's own criminal procedure has proven problematic in ordinary criminal trials. The process of updating these rules for the ECDK in conformity with international standards requires care and consultation.

No codes of ethics regulating the conduct of judges and other staff of the ECDK currently exist. The creation and adherence to such codes will be crucial for the tribunal's success, and consistent with the practice of other internationalized tribunals. There is no shortage of models upon which to draw, with appropriate adaptation to the Cambodian context. The International Criminal Court (ICC) has a Code of Ethics for Judges and a draft Code of Professional Conduct for Counsel Before the ICC. The International Criminal Tribunal for the former Yugoslavia (ICTY) has adopted a Code of Ethics for Interpreters and Translators, as has the Special Court for Sierra Leone (SCSL). Both the International Criminal Tribunal for Rwanda (ICTR) and the SCSL adopted a Code of Professional Conduct for Defense Counsel. In Cambodia, a draft bill on the Status of Judges and Prosecutors is not specifically tailored to the ECDK and is not expected to be adopted before 2006. The bill requires further refinement to ensure conformity with international standards on judicial ethics and the role of prosecutors.

Full transcripts of proceedings should be mandated by the ECDK's Rules of Procedure and Evidence. Corresponding rules of the ICC, the ICTY, the ICTR, and the SCSL explicitly require "full and accurate" transcripts to be made. The ECDK should follow these precedents.

Interpretation and translation concerns for the ECDK need to be addressed immediately. A recent report on the ECDK written by a visiting technical advisor, who is a senior expert in translation from the ICTY, identified a serious capacity problem with respect to interpretation and translation for the ECDK. This report recommended that:

The recruitment of qualified interpretation and language staff is of key importance to the ECDK. This should be conducted impartially, free from government and other interference, and with full procedural transparency.

Interpreters and translators must be trained in legal and Khmer Rougespecific terms, as well as in the principles of translation, the methodology for consecutive interpretation for field interpreters and simultaneous translation for courtroom interpreters.

The ECDK's Language Service will require a well-defined, autonomous position in the tribunal's structure, with the Service's head answering directly to the top administrators of the tribunal.

Interpretation and translation services must be in line with international standards. This is an issue which requires immediate attention. A sound strategy needs to be in place before the ECDK begins operations.

Investigative Capacity

The quality of criminal investigation will be crucial to the thoroughness and effectiveness of ECDK prosecutions. A great deal of valuable documentation has been gathered by NGOs, particularly DC-Cam. Nonetheless, additional investigation will be necessary to identify witnesses for trial, to examine and analyze documents, and to provide the evidentiary basis necessary to substantiate theories of liability, including command responsibility, that may link high-level defendants to criminal activity. It is unclear who will carry out the investigations, and with what capability. Articles 20 and 23 of the Law on the ECDK provide that in carrying out their functions, co-prosecutors, and coinvestigating judges may seek the assistance of the government, "and such assistance shall be provided." In practice, how will this provision be translated into effective police cooperation with prosecution and judicial orders to gather evidence, question witnesses, follow leads, and maintain the confidentiality of investigations? Versions of the ECDK budget viewed by the Justice Initiative have made little provision for investigators and analysts. Some reports have indicated that approximately 60 judicial police officers responsible for investigating ordinary crime will be assigned to the ECDK. If this is true, it remains unclear how the officers will be selected. Moreover, there is to date no public information regarding the nature and scope of the training they will receive in techniques for investigating mass atrocities. Excessive reliance on untrained investigators would seriously compromise prosecutions.

ECDK co-prosecutors and co-investigating judges must be able to call upon sufficient and skilled investigative resources. Officers should be selected based on their competence and integrity. Training should commence immediately in international humanitarian law and the techniques used to investigate international crimes, which are often more complicated and may require skills beyond those required for ordinary crimes.

Outreach

Article 34 of the ECDK Law provides that trials shall be "public and open", including to media and international and local NGOs, except under "exceptional circumstances" where "publicity would prejudice the interests of justice."

On June 30, 2005, a location for the tribunal—a military facility situated 11 miles outside Phnom Penh—was approved, which poses significant challenges for public access. Importantly, the UN and GIS underscored the need for "provision of adequate public transportation arrangements between the center of Phnom Penh and the site to ensure the widest public attendance possible." They also underscored the importance of ensuring that tribunal operations are completely separate from military operations, including separate and direct entrances for the public, and a physical separation of the two compounds. Compliance with these conditions will be crucial if the Cambodian public is to enjoy full and meaningful access to the trials. In addition, more must be done to ensure that outreach is effective and impacts meaningfully on the broader Cambodian population. Additional measures should include facilitating access to the tribunal by Cambodian and international media; undertaking public education programs about the ECDK process well before the trials begin; and establishing regional media offices in downtown Phnom Penh and other population centers to provide reliable information regarding the tribunal's activities, including—as a supplement to direct public access— audio or video broadcasts, with limited time delay for redaction where appropriate.

Preparation/Training for Staff, both Cambodian and International

The quality of training for both Cambodian and international judges, prosecutors and other staff of the court will be fundamental to ensure the tribunal's successful operation. Training of potential Cambodian participants is underway or planned; it is unclear how training participants will be selected or, with respect to judges and prosecutors, what relation, if any, exists between participation in training and eligibility for nomination to the ECDK. Training should not be seen as a one-off process; there may well be need and opportunity for continuing education through the course of the trials. The needs of international judicial officials should not be overlooked. Once selected, they will require assistance in learning applicable Cambodian law and procedure. Greater participation and transparency is needed in the training process.

Defense

Article 21(3) of the Agreement states that "any counsel, whether of Cambodian or non- Cambodian nationality, engaged by or assigned to a suspect or an accused shall, in the defense of his or her client, act in accordance with the present Agreement, the Cambodian Law of the Statutes of the Bar and recognized standards and ethics of the legal profession." The Law of the Cambodian Bar, however, prohibits international lawyers from directly representing clients in court. Article 5 of the Bar Law states that foreign lawyers "have the right to practice the profession with a Khmer lawyer and accompany/assist Khmer lawyers before the courts or other institutions of the Kingdom of Cambodia. Foreign lawyers may not represent (stand in for) clients." It must be explicitly clarified that an accused before the ECDK has a right to competent counsel of choice, including a qualified international attorney.

The Bar Law's ambiguity is further complicated by the limited capacity of the Cambodian defense bar. In recent months the Cambodian Bar Association has been paralyzed by internal conflict. This has impaired the Bar's ability to contribute to the ECDK's development, and to help prepare its members to play useful roles during investigation and trial.

International standards require that each person charged with a crime has access to effective legal representation. Procedures must be in place to ensure that counsel for the accused have the ability to carry out effective investigations of their own, to conduct effective cross-examinations of witnesses, and to mount a meaningful defense. Adequate controls will be needed to ensure the proper use of funds provided for defense counsel. The creation of a Code of Ethics for defense counsel is a necessary foundation for quality control. Training of defense counsel, both Cambodian and international, will be essential. Adequate funding is central to this process.

Protection of Victims/Witnesses

The Agreement provides, under Article 23, that victim and witness protection measures shall include, but not be limited to, "the conduct of in camera proceedings and the protection of the identity of a victim or witness." Given the dangers, and perceived security threat, for some potential witnesses, provisions must be in place to ensure that witnesses may testify voluntarily and without undue concern for their wellbeing. Where necessary, arrangements must be made to relocate witnesses and their families outside of Cambodia. Measures must be undertaken to protect the identity of certain witnesses inside and outside the courtroom. International practices suggest that the ECDK should:

Create a separate Victim/Witness Unit to provide information, services, and protection to victims and witnesses.

Use existing NGOs already operating throughout the country to help with outreach and to assist in ensuring that victims and witnesses' needs are addressed.

Develop, implement, enforce, and monitor a confidentiality policy to keep all sensitive information secure.

Provide detailed information about the investigation and trial process to potential witnesses so they can make an informed decision about whether and how to participate.

Consider the need for security when approaching and talking to victims and witnesses.

Train investigators and other court personnel in dealing with traumatized victims, including survivors of sexual violence.

Ensure victims' needs are addressed in the Extraordinary Chambers' rules of procedure and evidence, including the needs of survivors of sexual violence.

Provide psychological support to victims and witnesses who testify.

Communicate with victims and witnesses regarding the progress of the trial and the eventual outcome.

Establish procedures to protect victims and witnesses before, during, and after the trial.

Establish the capacity to offer mental health services for victims and witnesses who need them.

Provide training to ECDK staff in supporting the needs of victims and witnesses.

Support the work of NGOs and counselors facilitating these issues.

Accounting System

An effective accounting system must be put in place to ensure that ECDK funds are properly used, tracked and accounted for. Once the tribunal is up and running, and again on a continuing basis thereafter, the ECDK budget should be re-examined in light of its evolving needs. In the event additional funds are required to ensure its effectiveness, the GIS, through the aforementioned committee, could play a useful role in filling the gap.

Legacy and Local Impact

A strategic plan needs to be developed and implemented to maximize the positive impact of the ECDK on the rule of law and the national court system, including the Bar, and other related organs, such as the Supreme Council of the Magistracy. The experience of other hybrid tribunals has shown the value of thoughtful analysis about the impact of the court and what it will leave behind. Legacy has been considered in at least three ways in the other tribunals, each of which merits serious consideration in the context of Cambodia:

Physical Legacy: Perhaps the most obvious legacy of the international tribunals is the physical equipment they leave behind. Other tribunals will leave behind some combination of buildings (including the courtroom and detention facilities), vehicles, books, computers, telephones, and other equipment. In Cambodia, the tribunal will be located in military facilities. It is important that these premises do not simply revert back to military use once the ECDK completes its work.

Professional Development:Sustained interaction and engagement with international professionals working at internationalized tribunals can potentially enhance the skills of local individuals employed by the court. If carried out with care and sensitivity, this influx of new skills could be of enormous benefit to the domestic justice system after the ECDK has finished operations. Given the extraordinary demands of performance and output during a time-limited prosecution and trial procedure, professional development goals and programs must be mainstreamed in ECDK planning if they are to be successful.

Legal Reform: In other contexts, the operation of internationalized tribunals has usefully provoked re-examination of local jurisprudence, legal practice, and rules of procedure. It is to be hoped that the ECDK performs well enough to provide a model of a wellfunctioning judiciary against which to measure the ordinary court system. By making citizens aware of the possibility for legal institutions to render justice, the ECDK could spark demand for—and demonstrate the possibility of—needed reform of Cambodia's legal institutions and practices, and other accountability mechanisms. Donor support is important in creating capacity and opportunities within the legal profession and outside for analysis of the legal implications for Cambodia's courts of the ECDK. This might include debates over the content of the ECDK's rules and procedures, training on the applicability in ordinary criminal proceedings of jurisprudence emerging from the ECDK, and reflection upon how to provide more effective redress for victims of crime.

Conclusion

The product of nearly a decade of negotiation, the ECDK is an imperfect, long-delayed, but necessary vehicle to combat impunity for the Cambodian genocide before its remaining principal progenitors pass away. The Group of Interested States has a financial, political, and moral stake in ensuring that the tribunal operates effectively, impartially, and with broad public engagement. To succeed, the above challenges must be addressed immediately.