Justice Delayed

Letters to Phnom Penh Newspapers

23 May, 2016

“It’s always difficult to make an exact projection about how long things will take,” according to ECCC spokesman Lars Olsen, as quoted in the Phnom Penh Post on May 10, referring to the announcement that the tribunal’s Supreme Court now does not expect to rule before mid-August on the appeals of Nuon Chea and Khieu Samphan against their conviction in trial 002/01.

But, in reality, it is nearly always possible to predict how long various ECCC proceedings will take: too long.

As is well known, most of the top leaders of the Khmer Rouge have died without facing trial. This has not always been the fault of the ECCC itself.

Because of Cold War politics, it took two decades after the overthrow of the Khmer Rouge before there was serious international involvement in the efforts to conduct trials of the leaders of Democratic Kampuchea.

The United Nations Office of Legal Affairs, never enthusiastic about involvement in trials in which it did not have total control of everything, dragged out the negotiations with the Cambodian government and then completely pulled out of the talks for a year.

The UN General Assembly forced the OLA to return to the negotiations, but it couldn’t do much to change the attitude of UN officials. Although an agreement to establish the ECCC was signed in 2003, UN Secretary-General Kofi Annan refused to allow anything to go forward until member states had contributed enough money to pay for proceedings. That took until 2006, by which time most high-ranking KR officials were dead.

Then the OLA was able to appoint enough international judges who insisted on re-inventing court procedure from the beginning (ignoring draft rules prepared by an international expert), so that just getting the court cranked up enough to open the first case took another year, until July 2007.

Confronted with a choice between civil law norms, which involve a long pre-trial investigation and a relatively short trial, and common law norms, which are a relatively short pre-trial investigation and a lengthy trial, the judges chose to combine the worst of both worlds and decreed a long pre-trial investigation combined with a lengthy trial that essentially repeated that investigation.

Thus the court spent a year and a half, from mid-2007 to February 2009, taking detailed testimony regarding Duch, the commandant of S-21, and then spent another nine months having the testimony repeated in court. The trial court then took eight months to decide that Duch was guilty, even though he had repeatedly admitted his guilt during the trial. Another year and a half passed before the Supreme Court ruled on the appeals by Duch and the prosecution.

Case 002/01 has taken even longer. Investigations began in 2007, the trial hearings took from 2011 to 2013, and the initial judgment was issued in August 2014. The Supreme Court justices cannot have been surprised when lawyers for the defendants appealed their conviction. Yet, on its present schedule, the Supreme Court will issue its ruling on the appeals more than two years after the trial concluded. Of course, if the defendants die in the next two months, the justices will have expended all of their hard work and thinking to no purpose.

The saying “Justice delayed is justice denied” has been around since at least 1842. It is certainly true for the more than 50 civil parties who, their lawyers report, have died during case 002/01. Perhaps, looking at the history of the ECCC, it it time to update that saying: Justice delayed is the new normal.

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© 2016, Letters to Phnom Penh Newspapers

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