Implications of the ECCC's second judgment

On 7 August 2014, the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered their second judgment in the trial of serious crimes committed during the Khmer Rouge regime (1975-1979). Last week, the Australian Human Rights Centre hosted a forum with UNSW Associate Professor, Sarah Williams, and ANU PhD candidate, Christoph Sperfeldt to discuss the implications of the Court’s decision in Case 002/01.

Case 002 involves two former senior Khmer Rouge leaders, Nuon Chea, the former Chairman of the Democratic Kampuchea National Assembly, and Khieu Samphan, the former Head of State of Democratic Kampuchea. In the most complex case that an international tribunal has ever seen, both men have been convicted of crimes against humanity and stand accused of genocide and grave breaches of the Geneva Conventions.

Allowing civil parties to participate in the case alongside the criminal trial, Case 002/01 saw almost 4000 victims – represented by 11 legal teams – join the proceedings: the largest victim participation in any international criminal trial to date.

The judgment of 7 August 2014 (Case 002/01) marks an end to the first of two mini trials in Case 002, severed as a trial management tool owing to the complexity of the case.

Assoc. Prof. Williams said the severance – intended to achieve efficiency – led to significant delays, uncertainty as to the scope of evidence, and has created artificiality in the arguments and in the Court’s findings. Limited to three crimes sites between April 1975 and December 1977, the trial did not address genocide against the Cham and Vietnamese – a crime most frequently associated with the Khmer Rouge regime.

Addressing two cases of forced population movement and the execution of former Khmer Republic officials and soldiers in 1975, the court considered crimes against humanity including extermination, political persecution, forced transfer, attacks on human dignity, and enforced disappearances. Assoc. Prof. Williams said while the judgment’s impact is limited in terms of substantive law it may have implications for the Court’s approach to finding personal criminal liability in future cases. Both men, though exercising disparate levels of power within regime, were found to have made significant contributions to a joint criminal enterprise with the broad purpose of implementing a socialist revolution in Cambodia.

Assoc. Prof Williams said at least one party is expected to appeal the Court’s decision within the next week and suggests that proceedings in the next case (concerning genocide, forced marriages, conditions of imprisonment, worksites and forced labour) are likely to experience lengthy delays. And while the judgment makes important findings on historical patterns of conduct and the regime’s command and control structures, Ass. Prof. Williams says it is unclear whether these will be allowed to stand as the foundations for Case 002/02.

 

For Christoph Sperfeldt, the participation of victims, public profile of the case, and the gravity of sentencing will strengthen public discourse about the atrocities and see 11 of 13 proposed reparations projects implemented around the country.  While many of these initiatives are limited to collective and symbolic reparations, Mr. Sperfeldt said the ECCC has found creative, collaborative and effective ways to endorse externally funded and meaningful reparations projects as part of the judicial process. 


With thanks to Erin Jardine, AHRCentre intern, for summarising the seminar.