Extraordinary Justice: Law, Politics, and the Khmer Rouge Tribunals 9780231550727

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EXTRAORDINARY JUSTICE

Extraordinary Justice LAW, POLITICS, AND THE KHMER ROUGE TRIBUNALS

Craig Etcheson

Columbia University Press New York

Columbia University Press Publishers Since 1893 New York Chichester, West Sussex cup.columbia.edu Copyright © 2020 Columbia University Press All rights reserved Library of Congress Cataloging-in-Publication Data Names: Etcheson, Craig, 1955– author. Title: Extraordinary justice : law, politics, and the Khmer Rouge tribunals / Craig Etcheson. Description: New York : Columbia University Press, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2019015221 (print) | LCCN 2019018061 (ebook) | ISBN 9780231550727 (electronic) | ISBN 9780231194242 (cloth : alk. paper) | ISBN 9780231194259 (pbk.) Subjects: LCSH: Extraordinary Chambers in the Courts of Cambodia. | Trials (Crimes against humanity)—Cambodia. Classification: LCC KZ1208.C36 (ebook) | LCC KZ1208.C36 E83 2019 (print) | DDC 341.6/90268—dc23 LC record available at https://lccn.loc.gov/2019015221

Columbia University Press books are printed on permanent and durable acid-free paper. Printed in the United States of America Cover image: © Nic Dunlop/panos pictures Cover design: Lisa Hamm

CONTENTS

ACKNOWLEDGMENTS LIST OF ACRONYMS

Introduction

vii xi

1

Chapter One Revolutionary Justice

9

Chapter Two Victor’s Justice 25 Chapter Three Negotiating Justice 63 Chapter Four Justice Delayed 100 Chapter Five Hybrid Justice 121

vi CONTENTS

Chapter Six Transitional Justice

144

Chapter Seven Selective Justice 176 Chapter Eight Genocide Justice 226 Chapter Nine Justice Denied 290 Chapter Ten Extraordinary Justice

NOTES

357

SELECT BIBLIOGRAPHY INDEX

335

449

425

ACKNOWLEDGMENTS

The research reported in this book has been in process for nearly two decades. The project originated under the auspices of a pair of grants from the United States Institute of Peace (USIP) during 2001–2002, and again in 2004. Part of the text is based on my unpublished study, Retribution and Reconciliation: Healing What Ails Cambodia (Washington, DC: A Report to the U.S. Institute of Peace, October 2002). I am grateful for this support, without which the work could not have been completed. The opinions, findings, and conclusions or recommendations expressed in this book are those of the author and do not necessarily reflect the views of the United States Institute of Peace. USIP’s Vice President for Grants, Judy Barsalou, invested enormous faith in the project, and I am very grateful for her long-standing encouragement. Two editors at the U.S. Institute of Peace, Nigel Quinney and Kurt Volkan, provided many suggestions that had an enormous impact on the final shape of the project. I would also like to thank USIP’s Steven Ratner for reviewing an early draft of this manuscript and providing numerous helpful comments and criticisms. The Johns Hopkins University School of Advanced International Studies (SAIS) kindly administered the USIP grants on behalf of the author. I extend heartfelt thanks to the SAIS faculty and staff and to the SAIS Foreign

viii ACKNOWLEDGMENTS

Policy Institute for their encouragement and assistance over the course of initial research that went into this book. Professor Frederick Z. Brown, in particular, was exceptionally generous in ensuring that I had a comfortable institutional base and intellectual home to carry out my work in the formative stages of the project. Many thanks go to him. A heartfelt thank you goes to Shawn McHale, then-Director of George Washington University’s Sigur Center for Asian Studies, for rescuing me from the floodwaters of Hurricane Katrina following our ill-fated move to New Orleans a few weeks before the storm struck in 2005. I was also kindly hosted as a Visiting Scholar by Northern Illinois University’s (NIU) Center for Southeast Asian Studies in 2013–2014 and George Mason University’s (GMU) School for Conflict Analysis and Resolution in 2015–2016, which provided intellectual space to continue the project. My thanks go to NIU’s Kenton Clymer and Judy Ledgerwood, as well as GMU’s Greg Stanton and Kevin Avruch, for those opportunities. My final academic harbor is Harvard University. The Harvard Humanitarian Initiative (HHI) brought me on board as a Fellow from 2017 to 2019, permitting me to bring this project to fruition. Many thanks to HHI’s Pham Phuong, Patrick Vinck, and Michael VanRooyen for their confidence in me. As a staff member at the United Nations Assistance to the Khmer Rouge Tribunal (UNAKRT) from 2006 to 2012, I learned so much from my Cambodian and international colleagues that went into shaping my understanding of the tribunal process and subsequently influenced the shape of this book. There are literally hundreds of people I should thank here, but suffice it to say, I thank you all from the bottom of my heart. UNAKRT was the most fulfilling professional experience of my entire life. During my years as a United Nations staff member and as a consultant to the UN, I had access to a wide variety of confidential documents related to the Extraordinary Chambers in the Courts of Cambodia (ECCC). I respected my pledge of confidentiality and used none of those materials in writing this book. However, certain individuals have seen fit to provide me with copies of ECCC and UN documents to which I did not have access in the course of my employment, and I considered these materials to be fair game. Similarly, some confidential documents from the ECCC and other agencies have been leaked to journalists and thence came into my possession, so I also considered those documents to have entered the public domain.

ix ACKNOWLEDGMENTS

Columbia University Press reviewers Peter Maguire and Jon Bush provided robust critiques of a late draft of the manuscript, saving me from many errors and ultimately having a profound impact on the overall shape of my narrative. I am indebted to them. I also extend my thanks to two additional reviewers for Columbia University Press, Sophal Ear and Jim Tyner. Other colleagues generously donated their time to offer detailed feedback on the manuscript, especially including Michael Hayes and Robert Petit. I am most grateful for their assistance. It goes without saying that a multitude of other individuals helped me in this work by sitting for interviews, providing various forms of information and other types of assistance in the course of the many years of research that inform this book. Any attempt to list all of them would risk being pedantic, and would almost certainly entail neglecting to mention some who made important contributions. I choose to resolve this dilemma by simply extending a heartfelt thank you to all who gave of their time and knowledge to help me produce this study. You know who you are, and I am immensely grateful. Finally, I especially thank my life partner, Mychelle Balthazard, for her limitless patience, encouragement, and sustained advice during my long slog to get this book onto the shelves. I could not have done it without her. Any errors or flaws that remain, of course, are solely my own.

ACRONYMS

ABA ADHOC AFP AI AP ASEAN BBC CBA CCP CDC CGDK CGJA CGP CHRAC CIJ CNN CORKR CPK CPP CPSU

American Bar Association (French acronym for) Cambodian Human Rights and Development Organization Agence France Presse Amnesty International Associated Press Association of Southeast Asian Nations British Broadcasting Corporation Cambodian Bar Association Chinese Communist Party Cambodian Documentation Commission Coalition Government of Democratic Kampuchea Cambodian Genocide Justice Act Cambodian Genocide Program Cambodian Human Rights Action Committee Co-Investigating Judge(s) Cable News Network Campaign to Oppose the Return of the Khmer Rouge Communist Party of Kampuchea Cambodian People’s Party Communist Party of the Soviet Union

xii LIST OF ACRONYMS

DC-Cam DCM DDOA DK DOA DPA DRV DSS EAC ECCC ECDK FIDH FUNCINPEC G-7 GIS GMU HHI HRW ICC ICJ ICTJ ICTR ICTY IMT JAG KR KRT MoU NGO NIU NKVD OCIJ OCP

Documentation Center of Cambodia Deputy Chief of Mission Deputy Director of Administration Democratic Kampuchea Director of Administration Deutsche Presse Agentur Democratic Republic of Vietnam Defense Support Section Extraordinary African Chambers Extraordinary Chambers in the Courts of Cambodia Extraordinary Chambers for Democratic Kampuchea (French acronym for) International Federation for Human Rights (French acronym for) National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia Group of Seven Industrialized Countries Group of Interested States George Mason University Harvard Humanitarian Initiative Human Rights Watch International Criminal Court International Court of Justice International Center for Transitional Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Military Tribunal Judge Advocate General Khmer Rouge Khmer Rouge Tribunal Memorandum of Understanding nongovernmental organization Northern Illinois University (Russian acronym for) People’s Commissariat for Internal Affairs Office of the Co-Investigating Judges Office of the Co-Prosecutors

xiii LIST OF ACRONYMS

OGPU OHCHR OLA OSJI PAVN PDK PM PRC PRIO PRK PRT PTC RAK RGC ROE/ROP SAIS SCC SCM SCSL SRSG SRV STF TC TRC UN UNAKRT UNDP UNTAC US USIP USSR VOA VSS WESU

(Russian acronym for) United State Political Administration United Nations Office of the High Commissioner for Human Rights United Nations Office of Legal Affairs Open Society Justice Initiative People’s Army of Vietnam Party of Democratic Kampuchea prime minister People’s Republic of China Peace Research Institute Oslo People’s Republic of Kampuchea People’s Revolutionary Tribunal Pre-Trial Chamber Revolutionary Army of Kampuchea Royal Government of Cambodia Rules of Evidence/Rules of Procedure School of Advanced International Studies Supreme Court Chamber Supreme Council of the Magistracy Special Court for Sierra Leone Special Representative of the Secretary-General Socialist Republic of Vietnam Secretariat of the Task Force Trial Chamber Truth and Reconciliation Commission United Nations United Nations Assistance to the Khmer Rouge Tribunal United Nations Development Program United Nations Transitional Authority in Cambodia United States United States Institute of Peace Union of Soviet Socialist Republics Voice of America Victim Support Section Witness and Expert Support Unit

EXTRAORDINARY JUSTICE

Introduction

Somehow, somewhere along the line, Cambodia took over my life. The roots of it are probably in the late 1960s and early ’70s, when my brother fought there and I was facing the possibility that I might be sent there to fight as well. This was likely the original spark. That spark began to glow brighter after 1975, as I watched in fascination from afar while a guerilla movement seized control of Cambodia and its people. Following a vicious five-year struggle against a U.S.-backed military junta, the Communist Party of Kampuchea—popularly known as the Khmer Rouge—rapidly implemented an astounding transformation of Cambodian society. They captured the capital, Phnom Penh, on April 17, 1975, and immediately ordered the city’s two million or more residents— now designated by the Khmer Rouge as “New People”—to march into the countryside, where they would be put to work as agricultural laborers. During the evacuation of the capital and other provincial towns, the Khmer Rouge sought to screen out government officials, military and business leaders, doctors, lawyers, journalists, the Buddhist clergy’s senior monks, and other prominent individuals, who were summarily executed. The Vietnamese, Cham, and Khmer Krom minorities were soon defined as enemies. Money, markets, religion, courts, modern medicine, family, schools, and most other existing institutions were abolished, replaced by the rule of Angkar, or the “Organization,” as the Khmer Rouge leadership styled

2 INTRODUCTION

themselves. So radical was the Khmer Rouge program that other communist parties around the world recoiled in horror. Less than four years later, the Vietnamese Communist Party decided to put an end to the Khmer Rouge nightmare by force of arms, driving them out of the capital on January 7, 1979. The Khmer Rouge regime arguably had been the most totalitarian and, in terms of its treatment of its own population, the most violent regime of the twentieth century. It was not until near the end of the Khmer Rouge regime that I began to study the place seriously. It was another decade still before I became what some might call an “engaged scholar.” But at some point, I decided that if what Cambodia’s Khmer Rouge had done was not a crime, then by god, it should be. Over the last quarter century since then, I have remained tightly focused on one central goal: helping to bring the leadership of Cambodia’s Khmer Rouge to justice for the many crimes they committed during their brief regime, crimes that I believed included genocide. Along the way, scores of people, perhaps hundreds—journalists, academics, diplomats, bureaucrats, soldiers, and others—told me that my goal was impossible, and that it would never happen. At most, they warned, I would simply get myself killed in the process. And there have been numerous moments along the way where getting killed seemed like a distinct possibility. It turns out that pursuing mass murderers sometimes involves consorting with people of dubious reliability. It also involves seriously pissing off some extremely dangerous people. At one point, the Khmer Rouge announced over their radio station that they had convicted me of “genocide” and had sentenced me to death, thoughtfully adding that the method of execution would be by burning. So I said to myself, All right, then, we will see if they kill me first, or I put them in jail first. Now, as I write these words many years later, the two most senior remaining Khmer Rouge leaders have been convicted of genocide, with the verdict handed down in November 2018 in Phnom Penh. If the previous trials at this tribunal—the Extraordinary Chambers in the Courts of Cambodia, or more informally, the Khmer Rouge Tribunal—are any indication, the appeal process will take at least a year, and likely longer. We shall see if the two elderly accused survive long enough to hear the final verdict read to them. This, then, is an appropriate time for me to reflect on this long journey toward justice, and to attempt to distill some of the many things I have learned along the way. One of the things I have learned is that certain words,

3 INTRODUCTION

words that may seem quite simple on the face of it—like “truth,” “justice,” and “law”—are in fact very complicated. They mean different things to different people. Consequently, getting people to agree on them can be exceedingly complicated and time-consuming. Hence, my quarter-centurylong quest. Take the word “law,” for example. After my undergraduate studies, I briefly considered going to law school, but in the end I chose professional training in international politics, which included only a fleeting education in the law. So, as I tried to make sense of what had happened in Cambodia during the Khmer Rouge regime, I began to read more deeply in the legal literature and to study the law from varying vantage points. One of those perspectives became an immersion seminar in Washington, DC, on the sources of law, where I sought to bring about the passage of legislation in the U.S. Congress to weaken the still-dangerous Khmer Rouge military machine, and to make it the policy of the United States to support the prosecution of the Khmer Rouge leadership. Among other things, I learned the wisdom of a quip attributed to Otto von Bismarck, to the effect that those who love laws and sausages should never watch them being made—much less participate in their making. This experience acquainted me with the fact that the law is deeply rooted in politics. And this is where things start to get a little complicated. In Western, first world societies, institutions are designed to attempt to keep politics out of the administration of justice in the courts. Most everyone except dyed-inthe-wool Donald Trump supporters, for example, was scandalized when Trump led his rallies in chants of “Lock Her Up!” And they have gone beyond being scandalized, verging on serious Constitutional concern, as President Trump has pressured the U.S. Department of Justice to investigate his defeated former political opponent. That is the sort of nonsense, it is said, that only happens in third world dictatorships.1 But here is the thing: most of the world is governed by people who operate according to those socalled third world principles, where politics trumps the law. This insight reveals that there is more than one concept of how politics should relate to the law. In fact, there are several. Early on in my quest to bring the Khmer Rouge to justice, it began to dawn on me that the relationship between law and politics is complex, there are different ways of looking at that relation, and some of those ways are incommensurable. That is, they proceed from mutually incompatible

4 INTRODUCTION

premises, such that like East is East and West is West, ne’er the twain shall meet. But if I was going to find justice in Cambodia for violations of international law, then I had to find a way to make them meet. Thus I began a search for precedents, previous invocations of international law that managed to square the circle of this challenge. I needed to understand more profoundly how law actually operates in the context of an international tribunal. The obvious place to begin was with the proceedings in Nuremberg after World War II. The International Military Tribunal (IMT) at Nuremberg is held up today by many legal scholars as the greatest exercise of international political justice in history. Judith Shklar, the late Harvard political theorist, made the point that there were no laws appropriate to the scale of the criminality practiced by the Third Reich. “There are no civilized responses that are fitting, and certainly no legal norms that can cope with what the Nazis did to Europe. There certainly were none, either national or international, in 1945.”2 Although the legality of the trial has been challenged by many observers over the years, as Shklar notes, it “was internally fair.”3 Political philosopher Otto Kirchheimer seems to agree, arguing that the degree of legitimacy attaching to such a proceeding flows not so much from the origin of the court or the substantive law it applies as from the nature of the proceeding itself: “The appointment procedure and the nature and genesis of the applicable texts do not in themselves decide the character of the proceedings. When determining the type of credit and rating given to a successor trial, one must take equal account of the method of examining and evaluating submitted facts, for it reflects the tribunal’s amount of independence from momentary outside pressures.” 4 In this respect, the IMT was not merely a legitimate legal proceeding. “In terms of providing fallen foes with a legitimate forum, the IMT was unprecedented in modern history,” argues Peter Maguire, a political scientist who has studied war crimes in Germany, North America, and Cambodia. “The accused were informed of the charges filed against them and given access to the evidence, legal representation, and an opportunity to state their cases in open court.”5 In other words, according to Shklar, the IMT was a process characterized by “legalism.” Legalism “is an ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.” 6 For Shklar, legalism is an ideology,

5 INTRODUCTION

a worldview that shapes one’s perceptions of events and understandings about proper modes of behavior. Among the proponents of legalism, the law is seen as an autonomous sphere of social activity, divorced from and unrelated to both politics and morals, per se. Politics is treated in legal theory in much the same way as are morals, except that here there appears to be virtually unanimous agreement that law and politics must be kept apart as much as possible in theory no less than in practice. The divorce of law from politics is, to be sure, designed to prevent arbitrariness, and that is why there is so little argument about its necessity. However, ideologically, legalism does not stop there. Politics is regarded not only as something apart from law, but as inferior to law. Law aims at justice, while politics looks only to expediency. The former is neutral and objective, the latter the uncontrolled child of competing interests and ideologies. Justice is thus not only the policy of legalism, it is treated as a policy superior to and unlike any other.7

Shklar makes the point that so deeply is legalism ingrained into Western cultural traditions that ordinary citizens of liberal societies more or less automatically engage in rule-following behavior as a reflexive course of action. This can be seen, for example, in the daily application of Robert’s Rules of Order to the conduct of meetings in civic associations, and in myriad other occasions of everyday life.8 Yet the penultimate expression of legalism is in the operation of the law. The “rule of law” is just that— organizing and judging behavior according to a pre-existing set of rules. This points to another fundamental tenet of classical legalism, that the “pre-existing set of rules,” i.e., the law, is simply “there.” How the law that is “there” comes to be “there” is not a concern for the judge or the lawyer. His or her job is to apply those rules as they exist. This attitude is necessary to maintain the fiction that law is utterly divorced from politics, that the two should never and do never meet or interact. The political processes that operate in the legislative world from which law emerges may as well not exist, as far as the dedicated legalist is concerned. Thus can judges effectively deny the fact that, by dint of the reality that they are enforcing the rules of the regime, they do indeed play a central role in the larger political process within which they are situated. They rather perceive themselves as neutral arbiters, above and beyond the day-to-day nastiness and arbitrariness of political to-and-fro.

6 INTRODUCTION

The high priests of the ideology of legalism are judges, most prototypically the judges within Western liberal systems of governance. Lesser acolytes are professors of law, practicing lawyers, civil servants trained at law, and, in the modern day, many human rights activists. This perspective on the function of law is deeply embedded in the worldview of senior officials in the United Nations Office of Legal Affairs, and also of senior staff of international human rights organizations such as Human Rights Watch (HRW), Amnesty International (AI), and the International Federation for Human Rights (FIDH). Legalism deeply colored much of the public rhetoric of the Western allies in the run-up to Nuremberg, as well as the terms in which the legacy of the Nuremberg trials has been cast. It is a very sophisticated fish that understands that its environment is wet. In this same way, adherents of legalism generally do not understand that they are in thrall to an ideology, defined as a system of political thought. Indeed, those wedded to legalism tend to recoil at the very notion that they might be operating according to an ideological system, so natural does that system seem to them. But Justice Robert H. Jackson, the chief counsel for the United States at Nuremberg, was one such very sophisticated fish. One point Jackson stressed in preparing for the Nuremberg trials was the importance of prosecuting Nazi organizations as juridical persons at the International Military Tribunal. Faced with the problem of how to deal with the hundreds of thousands of people who had some hand in Nazi depredations across the breadth of Europe and beyond, the Americans had determined that the solution would be for the court to find that the organizations to which they belonged were criminal enterprises in and of themselves. “Findings in the main trial that an organization is criminal in nature,” Jackson wrote, “will be conclusive in any subsequent proceedings against individual members. The individual member will thereafter be allowed to plead only personal defenses or extenuating circumstances, such as that he joined under duress, and as to these defenses he should have the burden of proof.”9 This was a far cry from the high-minded rhetoric Jackson had expounded scarcely six weeks previously in an address to the American Bar Association, where he argued, “You must put no man on trial before anything that is called a court, if you are not prepared to establish his personal guilt.”10 Now he was advocating that huge numbers of individuals should be condemned en masse, and that the burden of proof should be shifted from the

7 INTRODUCTION

accuser to the accused. In that same ABA speech, Jackson had also said, “We must not use the forms of judicial proceedings to carry out or rationalize previously settled political or military policy.” And yet, here he was doing precisely that, organizing a judicial proceeding in such a way as to carry out a previously settled political policy on the desirability of neutralizing the entire personnel of the Nazi apparatus. This attitude toward the law stands in stark contrast to the classic legalism exhibited in Jackson’s previous pronouncements. This approach has been described by political scientist Peter Maguire as “strategic legalism.” Maguire elaborates on what he calls a “duality” in American foreign policy, a tension between law and power, in which legal concepts have been consciously and cynically deployed for strategic ends at least since the United States seized the Philippines at the turn of the nineteenth century.11 Maguire defines “strategic legalism” as “the use of laws or legal arguments to further larger policy objectives, irrespective of facts or laws, as [Secretary of War Elihu] Root pointed out, ‘It is not the function of law to enforce the rules of morality.’ ”12 Strategic legalism, then, holds that for every policy impulse, an appropriate rule can be found, or manufactured, to serve it. Thus politics and the law become connected. The father of modern political realism, Edward Hallett Carr, wrote that “politics and law are indissolubly intertwined.”13 Realism is therefore an ideological competitor to legalism, which contrariwise holds that law is divorced from politics. This is the meaning of Maguire’s concept of strategic legalism; it is realism in the sphere where the affairs of state intersect with legal affairs. If classical legalism holds that law is superior to politics and strategic legalism holds that law and politics are “indissolubly intertwined,” then what of the perspective that politics is superior to law? This third ideological orientation on the function of law can be designated as “instrumental legalism.” The animating spirit of instrumental legalism is succinctly summarized by Vladimir Lenin’s famous dictum, “Law is a political instrument, it is politics.”14 Instrumental legalism goes far beyond strategic legalism, conceiving of law strictly as a tool of the sovereign, in which form is privileged over substance and policy over rule following. This ideological orientation is most commonly found in socialist states and other oneparty dictatorships, where law is never permitted to trump the preferences of the ruling party or the supreme leader. Perhaps the fullest realization of instrumental legalism was in the early years of the Soviet Union, but it was

8 INTRODUCTION

also certainly the governing legal ideology through all phases of Soviet participation in Nuremberg. Instrumental legalism spread throughout the Soviet sphere of influence in the wake of World War II, a topic to which I shall return momentarily. THE ANALYTICAL FRAMEWORK

We have seen, then, that there are three general approaches to the relationship between law and politics. “Classical legalism” envisions law as separate from and fundamentally unrelated to politics. In “strategic legalism,” law and politics become intertwined, such that legal rules can be reinterpreted and/or created in the service of political or policy preferences. Finally, “instrumental legalism” turns classical legalism on its head. Politics is the controlling factor, and law becomes merely another political tool. Western liberal democracies rarely, if ever, display the hallmarks of instrumental legalism. Likewise, communist, totalitarian, and authoritarian regimes generally do not behave according to the dictates of classical legalism. All, however, can occasionally engage in strategic legalism. These three incommensurable legal ideologies—classic legalism, strategic legalism, and instrumental legalism—combine to form a framework or model that describes the behavior and interaction of states, international organizations, and nongovernmental organizations across the process of creating, enacting, and completing war crimes tribunals. In the negotiations to create international war crimes tribunals, as well as during the operations and the aftermath of those tribunals, many interested parties—state, interstate, and nonstate—will seek to wield influence in shaping unfolding events. Each party will engage in this process carrying the assumptions of one, and sometimes more than one, of these legal ideologies. The interactions among the various parties and their ideological proclivities will shape the outcome of any particular exercise in postconflict international justice. Let us turn next to a consideration of how a legal ideology originally developed in the crucible of the Russian revolution could eventually end up in Cambodia, which in turn would profoundly shape the design and conduct of the Extraordinary Chambers in the Courts of Cambodia.

Chapter One

REVOLUTIONARY JUSTICE

Cambodia has a long history of dictators. From time immemorial up to the late modern period, the territory now known as Cambodia was ruled by kings, princes, and potentates. A millennium ago, the cult of the deva-raja, or god-king, took root there, enduring through various tribulations until that tradition finally collapsed in 1970. “As the source of all authority,” the god-king “was the guardian of law and order, the protector of religion, and the defender of his land against external foes.”1 Even so, justice under the god-kings often relied on archaic rituals of trial by fire or trial by ordeal.2 Royally sponsored human sacrifices were also apparently routine.3 With the advent of French colonization in the mid-1800s, modern criminal justice reforms were gradually introduced. The colonial administration moved to eliminate practices such as torture, but it was certainly never “soft” on crime. For example, French colonial officials made liberal use of a mobile guillotine to discourage peasants from attempting tax evasion. It was considered a more humane method of execution.4 By 1923, the French had assumed control of Cambodia’s judicial system,5 and bored colonial administrators found themselves sitting as referees of interminable local disputes of all descriptions. A relatively modern constitution was adopted in 1947, modeled on the constitution of the French Fourth Republic.6 Even so, Article 21 specified that “All powers emanate from the King.”7

10 REVOLUTIONARY JUSTICE

Norodom Sihanouk, scarcely more than a boy at the time and far down in the expected line of royal succession, had been placed on the throne by the French in 1940. The French hoped Sihanouk would prove a reliable puppet, but they greatly underestimated him. He gradually outmaneuvered his erstwhile colonial masters, agitating to expel the French, who had been weakened by World War II as well as by rebellions in their other colonies. With independence from France in 1953, Sihanouk soon abdicated the throne to rule directly. He quickly adorned Cambodia with a modern civil law system, again modeled on French law and instantiated through the 1956 Code Penale. Sihanouk also revived another French colonial institution, the “Special Military Court,” devoted to enemies of the state, which is to say, enemies of Prince Sihanouk.8 Before the 1962 election, for example, numerous members of the leftist Pracheachon party were arrested, tried, and sentenced to death, though their sentences were later commuted to life imprisonment.9 The more unsavory penal practices that the French had attempted to extirpate returned under the guidance of Sihanouk’s security chiefs, General Lon Nol and Kou Roun.10 When Lon Nol overthrew Sihanouk in 1970 and instituted a military dictatorship, the rule of law in Cambodia entered a period of rapid decline until the Lon Nol regime in turn was overthrown by the Khmer Rouge guerilla movement. The Khmer Rouge regime lifted a page from Shakespeare and proceeded to “kill all the lawyers.”11 They eliminated the entire legal system, along with most other existing institutions in Cambodia, and attempted to manage society by decree from the Standing Committee of the Central Committee of the Communist Party of Kampuchea.12 Consequently, when their regime was overthrown in 1979, Cambodia was essentially bereft of legal professionals as well as anyone who knew how to organize and operate a judicial system. How Cambodia reconstructed a legal system from this utter vacuum, as well as the intellectual inspiration for that new system, are the topics to which I will now turn. THE DIFFUSION OF A LEGAL IDEOLOGY

Amid the tumult of World War I in 1917, Russia’s three-century-old Romanov dynasty collapsed under the weight of hungry workers and soldiers. A revolutionary group known as the Bolsheviks successfully seized power in the ensuing chaos, paving the way for the emergence of the Soviet Union. Their

11 REVOLUTIONARY JUSTICE

leader, Vladimir Lenin, set out to remake governance in Russia, sweeping away tsarist institutions and establishing radically new forms of social control. The revolutionary tribunals of the “War Communism” period of Soviet development operated outside of any framework of law. In this period—1918 to 1921—Lenin spoke of exercising “unlimited power based on violence, and bound by no laws” as a means of ensuring the survival of the newly founded state.13 This was easily accomplished insofar as virtually all the cadres of the revolutionary tribunals were members of the Communist Party of the Soviet Union (CPSU), and consequently they took their orders directly from the CPSU Central Committee. With the end of Russia’s civil war and the beginning of the “New Economic Policy” period, however, the Soviet state established “people’s courts” and began to codify law. With the expansion of courts during this new period of Soviet development, more personnel were required to staff the emerging judicial system, but there were not enough committed communists available to fill all the positions. Consequently, in the early years of the “people’s courts,” nearly half of the judges were noncommunists, and thus new mechanisms of political control were required. They were created primarily by the institution of the state procurators, who exercised effective control over all aspects of judicial behavior, from investigation to indictment through trial and punishment. Virtually all of the procurators were communist cadres rather than trained legal specialists, thus simplifying the problem of enforcing the will of the party through legal mechanisms. As leadership of the Soviet state passed from Lenin to Stalin, the legal system became more complex, more institutionalized, and to a certain degree, more professional. However, this did not mean that the Soviet courts exercised a greater degree of judicial independence. As the standard Soviet history of the judicial system puts it, “It must be borne in mind that the independence of the judges and their subordination only to the law does not mean independence from the state, or independence from the policy of the party and the government, because the court is an organ of power, and its function is one of the functions of state control.”14 Under Stalin’s Procurator-General, Andrei Vyshinsky, the Soviet-style “show trial” was perfected. In this process, victims of political purges would be tortured or otherwise coerced until they produced or agreed to sign a “confession” consistent with the prearranged script for the trial, and then they could be brought forth in court to publicly confirm their purported

12 REVOLUTIONARY JUSTICE

treachery. Vyshinsky’s colleagues in the Soviet intelligence services—the Obyedinyonnoye Gosudarstvennoye Politicheskoye Uprovleniye or OGPU (United State Political Administration) and the Narodny Komissariat Vnutrennikh Del or NKVD (People’s Commissariat for Internal Affairs)— became expert at extracting confessions from targets of political purges in such a way that should it be deemed expedient to produce the victim in open court, there would be no obvious signs of physical trauma. In most cases, public trials were used only when the victim of the purge was a respected senior cadre in the Communist Party and some convincing explanation for that person’s prosecution was necessary. This practice gave rise to the term “Vyshinskyism,” which was a highly developed form of instrumental legalism. Vyshinsky promulgated the doctrine of “substantive truth,” in which guilt or innocence was conceived as a matter of the highest probability.15 Under this doctrine, a confession was regarded as generating that highest probability, and hence was prima facie proof of guilt—regardless of how that confession might have been obtained. Although he had become the highest legal authority in the Soviet Union, Vyshinsky believed that sometimes it was more expedient to dispense with the apparatus of courts when it was necessary to suppress “enemies of the people.” In his most famous (albeit largely plagiarized) academic tome, The Theory of Legal Evidence in Soviet Law, Vyshinsky wrote, “If it is a question of annihilating an enemy, we may annihilate him without trial.”16 The majority of the victims of Stalin’s purges were dispatched in this manner.17 Many were brought before a type of secret military tribunal known as a “Troika” or “Special Board” of the NKVD, essentially a three-person committee whose function was to formally pronounce death sentences that had already been determined by a Special Security Commission made up of Politburo members plus Vyshinsky, or for less important victims, by lowerechelon security commissions.18 After Stalin’s death, the Khrushchev reform period saw many of the most spectacular abuses abolished, and violence became less routine.19 As one analyst has described it, the Soviet system began to evolve from totalitarianism to authoritarianism.20 Khrushchev’s successors, however, in many ways reverted to form—although again with less violence and overt lawlessness—continuing to use law as an instrument of political domination by the ruling party. Notwithstanding occasional revisions of the

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criminal code and other administrative changes, the Soviet legal system continued to function in this manner on through the collapse of the USSR. In the meantime, this system was spread first throughout the constituent republics of the Union of Soviet Socialist Republics, and after World War II to the Baltic states and throughout the nations of Central and Eastern Europe. For example, communist agents were active in Kazakhstan even before the October Revolution of 1917, and moved immediately to assert Soviet authority soon thereafter. Kazakhstan was formally incorporated into the USSR at the end of 1922, and the Russian civil code was adopted in 1926, becoming the guiding legal authority there until Kazakhstan adopted its own civil code in 1963.21 Kazakhstan finally separated from the USSR in 1991. Other Soviet republics followed similar trajectories. After the defeat of the Nazi regime in May 1945, the Soviets were quick to begin reorganizing civil authority in their zone of occupied Germany. In September, the Soviet Military Administration in Germany “ordered the dismissal of all Nazi judges and the reconstruction of the judicial system in its zone.”22 The Soviets established training courses to staff the new judicial system with “people’s judges,” brought up to speed in a six-month course that was later extended to one year, and eventually to two years. By January 1946, provisional courts were functioning with temporary personnel recalled from retirement or pressed into service with no legal background.23 What passed for law in those early days often had an improvised quality—bits of prewar statutes, decrees from the new government or occupying army, rulings from party officials and “Comrades”—but with judicial decisions grounded in good old-fashioned common sense, as best they could be under the circumstances.24 Soon enough, the “people’s judges” began to rely on the old 1900 civil code, the Burgerliches Gesetzbuch, all 2,400 sections of it.25 The East Germans justified this reliance on bourgeois law by arguing that since the means of production had been nationalized, the change in the conditions of the infrastructure necessarily changed the character of superstructural aspects such as law.26 That state of affairs continued until a newly designed civil code finally came online in 1975. By then, most of the “people’s judges” were gone, replaced by technocratic judges steeped in the ways of socialist legality.27 So it was that instrumental legalism spread throughout Central and Eastern Europe following World War II.

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CHINA

The establishment of the People’s Republic of China (PRC) in 1949 saw the extension of Soviet-style instrumental legalism into East Asia. As in the Soviet Union, the development of law under the Chinese Communist Party (CCP) transitioned through several distinct phases. However, the function of law in the PRC remained the same: to enforce the political will of the CCP. As one high-level cadre expressed it, “Our judicial work must serve political ends actively, and must be brought to bear on current central political tasks and mass movements.”28 A communist activist named Peng Zhen played a key role in the development of socialist law in China, fashioning legal institutions from the revolutionary period through the state-building phase and on into the post-Mao era.29 Among his innovations was the zheng-fa system (literally, “politics-law” or “political-legal”), a mechanism designed to ensure the compliance of the masses with the dictates of the party. “In Peng’s view, the rule of law presented no conflict with the leadership of the Party because the Party determined the content of law. Law was the instrument of rule through which the Party/state articulated its policies and exercised its political authority.”30 This perspective on the function of law did, however, conflict with Mao Zedong’s concept of permanent revolution and the suppression of the cardinal sin of “bureaucratism,” resulting in Peng’s purge during the Cultural Revolution. The origins of the Chinese communist “people’s courts” go back as far as 1927, in “liberated” areas of Hunan province. In their earlier incarnations, the people’s courts did not apply any codified body of law but were designed strictly to enforce the policy of the ruling party. As one observer characterized the operations of these institutions, “when a man is patently a class enemy, no considerations of law or legal procedure may be permitted to obstruct the course of justice.”31 Peng Zhen was also a key player in the development of the “people’s courts,” in which, as in the Soviet Union, propaganda and education were as central as the pursuit of justice per se. However, Zhen was concerned with regularizing the functioning of the legal system so that it would follow a prescribed set of rules rather than risk arbitrary interpretation of party policy. In addition to the “people’s courts,” during the period immediately after the Communist Party seized power, China also instituted “people’s

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tribunals.” These were primarily associated with enforcing the 1950 Agrarian Law, and they operated according to revolutionary principles rather than the principle of legality.32 The tribunals were deemed necessary in part due to the urgency of overcoming class enemies and consolidating the power of the new state, but also because in the early days of the regime, reliable cadres were in short supply and the people’s courts remained staffed in significant part by holdover nationalist personnel from the ancien regime. The tribunals were more ad hoc in nature, relying strictly on political cadres rather than legally trained specialists, and they were used to break the power of rural landlords. These revolutionary tribunals passed by the wayside as the revolution progressed through its initial tumultuous period and the party became more certain of its monopoly on power. Before 1949, communist “law” in China was more in the realm of regulation, wielded strictly as an instrument to enforce the directives of the party center. In the period of state building after 1949, law was again conceived of as purely an instrument to enforce the rule of the party. But it gradually became clear to Peng—particularly in the aftermath of the Great Leap Forward—that legal institutions and policy also needed to become a means of constraining agents of the party itself, including its highest cadres, especially, in Peng’s view, Chairman Mao. The coming of the Cultural Revolution in the late 1960s effectively overwhelmed not only all party discipline but also any pretense of establishing a system of legal norms. As Mao put it in 1968, “depend on the rule of man, not the rule of law.”33 Chaos was the order of the day. Not until the post-Mao era after 1979—the year that Peng was rehabilitated following his purge during the Cultural Revolution—was he able to begin to articulate a system of law that could at least in theory regulate the behavior of party members. To do so, he and his colleagues returned to drafts of laws that they had been contemplating in the late 1950s and early 1960s. The Criminal Procedure Law was supposed to elaborate the respective roles of the people’s courts, the people’s procuratorates, and the public security organs, as well as provide a coherent process for criminal trials.34 It would soon become apparent, however, that the procedures themselves were not well designed, and the public security organs had no intention of seeing their power and autonomy limited by a piece of paper. The Criminal Law of 1979 was based primarily on what was known as “the 33rd draft of 1963.”35 “Although [it was] supposed to be a comprehensive code

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following a European continental model, it consisted of only very general, ideology-ridden, vague and ambiguous principles in 192 articles, with a strong Soviet influence.”36 After a decade and a half of ad hoc and often haphazard amendments to the Criminal Law and Criminal Procedure Law, 1996 and 1997 finally saw a comprehensive reformulation of these codes. Nearly half of the 164 articles in the Criminal Procedure Law were revised, two were deleted, and 63 new articles were added.37 Similarly, the Criminal Law was subjected to a drastic overhaul, expanding from 192 articles to 452, in the process defining whole new areas of criminal law deemed necessary to keep pace with the rapid development of China’s new socialist market economy.38 “Crime, in general, was also more than a violation of the criminal law; it was regarded as a manifestation of class struggles between the proletariat and the bourgeoisie and a challenge to the political order.”39 But as the turmoil of the Cultural Revolution faded into the past and Chinese focused more on the glory of getting rich, use of the law as an instrument of class struggle began to be superseded by its use simply as a tool of social control. VIETNAM

With the emergence of an independent state in northern Vietnam following the 1954 Geneva Conference, instrumental legalism gained a foothold in Southeast Asia. The Democratic Republic of Vietnam (DRV) had a legacy of French civil code from the colonial period on which to draw as well as Confucian influences from China. But the north’s new rulers eschewed these models and instead relied primarily on techniques they had employed during their anticolonial struggle against France, techniques learned from their Soviet and Chinese allies. The system initially implemented by the Vietnamese communists drew on the early Soviet approach during the period of War Communism, as well as more recent Chinese precedents. The Vietnamese abolished the colonial Ministry of Justice and established local “people’s tribunals” similar in structure and function to the People’s Republic of China’s “people’s tribunals.” Decree No. 150 of August 12, 1953, established the people’s tribunals, and a companion decree, No. 151, directed that those tribunals be used against landowners.40 Over the course of the late 1950s, this institution was

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brought to bear in a bloody campaign against landlords.41 Political cadres, rather than legal technicians, were at the core of this effort, aiming at a revolutionary transformation of political, social, and economic relations. As in China and the USSR before it, this approach used law as an instrument to effect rapid social and economic change by attacking “class enemies.” The communists in the north were soon confronted with a very different type of enemy. Beginning in mid-1965, and with increasing intensity through the first half of 1966, the DRV publicly threatened to convene war crimes trials for captured U.S. airmen, then convict and execute them. The German Democratic Republic provided a detailed legal brief to the DRV outlining grounds for war crimes cases based on Nuremberg precedents. This would not be the last time that the East Germans worked with the Vietnamese on war crimes issues.42 The North Vietnamese had entered a reservation on Article 85 of the Geneva Conventions, giving them at least rhetorical cover to ignore the requirement that even “war criminals” must be accorded the protections for prisoners of war.43 When the North Vietnamese decided to parade U.S. prisoners before large crowds in Hanoi on July 6, 1966, and the stunt degenerated into a riot, however, the resulting negative international publicity appears to have dissuaded the North from proceeding with actual trials. It was more convenient to simply declare that the American prisoners were in fact “war criminals,” as the North’s propaganda had done all along. In late July, Ho Chi Minh signaled that the threat of war crimes trials had receded when he was quoted as saying, “Johnson, Rusk, McNamara—these are the ones who should be brought to trial.” 44 With the end of the Second Indochina War in 1975, the two Vietnams soon reunified and the DRV became the Socialist Republic of Vietnam. With the inauguration of the Doi Moi (“renovation”) era in 1986, the Vietnamese Communist Party sought to shift from the faltering centrally planned economic model to a socialist market economy, and this required drastic changes to Vietnam’s legal framework. Vietnamese communist legal theory during the 1950s, 1960s, and 1970s conceived of law primarily as an instrument of class warfare, a means to suppress enemies of the revolution. “During the period of central planning, law and legal rules were de-emphasized relative to the five-year plan and arbitrary bureaucratic power.” 45 The shift to a market economy would require more predictability in rule implementation, and hence a degree of centralization of legal

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decision making. In 1992, this entailed reforms that gave the State Prosecutor’s Office control over prosecutors at the central, provincial, and local levels. As Mark Sidel has observed, however, “It is important to note that the theory underlying Vietnam’s legal reform policy is a modern variant (as in China) on the Soviet theory articulated by Vyshinsky and his colleagues over 60 years ago. Law remains an instrument of the state, and the party continues to guide the state.” 46 CAMBODIA

The ideology of instrumental legalism that imbued the judicial systems of the Soviet Union, the People’s Republic of China, and the Democratic Republic of Vietnam would be transferred to Cambodia after 1978, during the Vietnamese military occupation of that country. Though much has changed in Cambodia since then, the echoes of instrumental legalism still reverberate strongly through the legal system and deeply color the outlook of Cambodia’s senior political—and legal—leadership. Among the many difficult challenges facing the new government of Cambodia at the beginning of 1979 was a serious deficit of intellectual capital. Educated people were explicitly targeted for extermination by the Khmer Rouge, and many of the best educated among their own ranks had been purged and ended up at the notorious S-21 security office, where they were destined to be “smashed.” By the time the Khmer Rouge were finally driven from Phnom Penh, you could count the number of surviving individuals with any formal legal training in the entire country on the fingers of two hands. So it was that in 1980, Sin Song found himself tasked with a legal project well beyond his experience and training. Song was from a peasant family in Prey Veng province, and he joined the Khmer Rouge in 1965.47 He gradually worked his way up through the ranks to command a military regiment in the eastern zone but was arrested in January 1977. He somehow managed to escape and fled to Vietnam, where he soon became part of the nucleus of cadres who would form the new Cambodian government after the Khmer Rouge regime was deposed. Sin Song was appointed as deputy minister of interior in 1979. In this capacity he was assigned to draft Decree Law Number 2, which would stand as the foundational document of Cambodian criminal law for more than a decade.

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Decree Law Number 2 was scarcely five pages long—a mere three in the English translation—and consisted of only twelve articles. It was formally entitled, “On the Penalty of Revolution’s Betrayal and Some Penalties of Other Betrayals.” Article 2 summarized the overarching principle that would guide law enforcement in the People’s Republic of Kampuchea: “Condemn to those instigators, planners and top leaders who have a dangerous plan, wild tricky activity and rough behavior against the Revolution.” 48 It was not a model of legal precision. The animating spirit of the law was that any behavior construed to be in opposition to the revolutionary authority was subject to criminal sanction. Though it was eventually supplemented with a few additional decree laws, this code remained the basis of Cambodian criminal law until it was superseded by a United Nations-drafted criminal code in 1992. Enforcement of Decree Law No. 2 was assigned to the Ministry of Justice and the Ministry of Interior. The minister of justice was Ouk Bunchhoeun, who had been the deputy secretary of Sector 21 in Democratic Kampuchea’s East Zone. Bunchhoeun had no legal training but had managed to gather around him at the ministry a handful of people who had prerevolutionary training in law. But they were largely consumed with drafting a new Cambodian constitution, so had no input on the criminal law. Minister of Interior Chea Sim, however, had police powers, and thus was keen to see the establishment of a statutory basis upon which those powers could be exercised. Decree Law No. 2 did exactly that, but unfortunately, it did not provide any role for courts or prosecutors, any procedures for trials or standards of evidence, or the slightest semblance of due process or human rights protections. Those would come much later, as the party solidified its institutions. In this respect, then, the Cambodian legal situation in 1979 and the early 1980s resembled the USSR’s War Communism period. The Ministries of Interior and Defense dominated law enforcement, usually without reference to the Ministry of Justice or the courts, simply executing or imprisoning people they regarded as having “betrayed the revolution.” Minister of Justice Ouk Bunchhoeun complained to the Council of Ministers in April 1983, “We can only hold trials if the police first send people [to court]. The problem is that there are a lot of arrests but no documentation or files.” 49 The problem would not be resolved quickly. According to Ministry of Interior records, between 1983 and 1985, police in Phnom Penh arrested a total of 6,954 people for betraying the revolution, ordinary

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crimes, or antisocial behavior, but a mere 23 cases were forwarded to the court.50 Not until March 1986 was a decree regulating arrests finally promulgated; now an arrest required a warrant, technically, at least.51 In these circumstances, the institutional framework for law enforcement emerged only gradually across the course of the 1980s. Responsibility for “tribunals” was vested in Ros Samay, who had been named Minister of Special Affairs, Economy, Co-operation with Foreign Countries, Tribunals, and for “drafting the constitution” in October 1979.52 A Ministry of Justice was established in June 1980.53 Samay, however, was purged in May 1981.54 Given the paucity of legally trained cadres, one of the first technical organs to be established was a legal training institute, the School of Cadres, Administration, and Legislation. That opened in June 1982, with Minister of Justice Ouk Bunchhoeun a member of the first class of students.55 Training, however, “emphasized Marxist-Leninist doctrines over legal subjects.”56 The Soviet Union exerted a significant amount of effort in attempting to proselytize their Cambodian allies in the ways of communism. During the 1980s, dozens of classical treatises by Lenin were translated from Russian into Khmer and shipped to Cambodia for the edification of the budding revolutionaries of the People’s Republic of Kampuchea.57 These included such hoary texts as “Where Do We Start?,”58 “On the Defense of the Socialist Motherland,”59 “On Cooperatives,” 60 “The Economy and Politics in the Epoch of the Dictatorship of the Proletariat,” 61 “A Looming Disaster and How to Ward It Off,” 62 “Socialism and War,” 63 and “Selected Works in 12 Volumes.”64 One suspects, however, that the Cambodian comrades were too busy trying to stay alive to devote much time to internalizing Lenin’s voluminous words of wisdom. In February 1982, the first and only court opened in Phnom Penh, dedicated to prosecuting members of the Republican, Royalist, and Khmer Rouge resistance movements who remained in armed opposition to the new regime.65 In 1983, the regime began to debate a decree law on criminal procedure, but there were still no courts outside of Phnom Penh.66 Not until 1990 did each province have a court of first instance, although some were barely functioning. That year, the Phnom Penh Municipal Court reported that it had processed some 934 cases, while the Kampong Cham court, by contrast, had processed only 36.67 A major part of the reason for the slow progress was a shortage of trained legal staff. In the early to mid-1980s, the qualification to be appointed as a

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judge was often as low as the ability to read and write. Some judges had as little as four years of primary education, others as much as eight or nine.68 Such supplemental training as they received tended to focus more on loyalty to the party than on legal reasoning. As Sok Sam Oeun described it, “Many of Cambodia’s judges were trained in socialist regimes and know only socialist legal concepts, where the state’s interest is more important than the freedom of the people. Most of them to some extent were trained this way, and it will take a lot of undoing to change that.” 69 In the mid-1980s, the regime began to send students abroad for legal training. Some, such as Nil Nonn, who would one day become the president of the Trial Chamber at the Extraordinary Chambers in the Courts of Cambodia (ECCC), attended the Faculty of Law in Ho Chi Minh City from 1985 to 1989. Others were sent to law schools in various republics of the USSR, such as Tan Senarong, who went with nine other colleagues to the National University of Kazakhstan in 1987—though he didn’t graduate until 1993, two years after the dissolution of the Soviet Union. Senarong would eventually spend time as an assistant prosecutor at the ECCC. Another group was dispatched to schools in Warsaw Pact countries, especially in the German Democratic Republic, where Cambodians were trained in law at the University of Leipzig, Martin Luther University, and the University of Humboldt. Some of this latter group bridged the transition from East Germany as a socialist state to a reunified Germany under Western values. One example is Chea Leang, who entered a socialist Martin Luther University in 1988 and graduated from a thoroughly “reconstructed” Martin Luther University in 1995.70 Leang, a niece of Deputy Prime Minister Sok An, would go on to simultaneously hold the posts of national co-prosecutor of the ECCC, general prosecutor of the Supreme Court, and chair of the Disciplinary Council of the Supreme Council of the Magistracy. Notwithstanding the collapse of the Soviet Union and Warsaw Pact, however, the bulk of this early legal training for Cambodian students was conducted according to socialist legal methodologies. Dith Munty was among the handful of people with antebellum legal training who survived the Khmer Rouge regime; he had previously been a judge. Munty was appointed as a defense attorney for Pol Pot and Ieng Sary at the People’s Revolutionary Tribunal held in August 1979, but owing to the paucity of well-educated cadres, he was subsequently assigned to other work deemed more crucial than reestablishing a legal framework. He

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founded Cambodia’s official SPK news agency, was ambassador to India, and later returned to work at the Ministry of Foreign Affairs, becoming deputy foreign minister in 1986.71 During the UN peacekeeping operation of the early 1990s, Munty was one of three representatives from the Phnom Penh regime appointed to the Supreme National Council, which embodied Cambodian sovereignty during the transitional period. Also during this period, in 1992, Munty was put in charge of the newly established Ministry of Information and Propaganda. That year he told a journalist that the contribution he most wanted to make to his country was “to rebuild the judicial system.”72 Only in 1998 was he finally able to return to legal work, as chief justice of the Supreme Court. Not incidentally, Munty is also on the Standing Committee of the Central Committee of the ruling Cambodian People’s Party. After a great deal of preparation at the Ministry of Justice and negotiation among various concerned political and governmental organs, 1989 finally saw the promulgation of a Law on Criminal Trial Procedures.73 Modeled on civil law procedures, the 1989 code represented a huge advance in technical quality over the 1980 decree law. Its seventy-eight articles provided extensive due process protections for the accused, outlined the rights of victims, provided for civil party participation, and delineated the powers of the judge, prosecutor, defense attorney, and other officers of the court. Of course, putting all of this on paper was one thing and translating it into actual practice was quite another, so aspects like having defense attorneys playing an active role in criminal trials would emerge only in the wake of the UN intervention in 1992–93, and even then, slowly and grudgingly. In 1993, a new and much more polished Law on Criminal Procedure, running to 238 articles, was adopted.74 It was supplemented by a 1992 criminal code, drafted by United Nations experts and adopted by the transitional Supreme National Council, which outlined substantive criminal offenses and their punishments.75 The 1992 code also expanded the number of instances in the court system from two to three, with the existing Appeals Court redesignated as the Supreme Court and replaced by a new Appeals Court, sitting between the Municipal and Supreme chambers. As is appropriate under instrumental legalism, the subordination of the judiciary to political organs is explicit in Cambodian criminal procedure. Article 55 of the 1993 Criminal Procedure stated, “In case where the

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committed crime or misdemeanor is exceptionally serious, the prosecutor shall inform immediately the general prosecutor at the Appeals Court and the Minister of Justice. The Prosecutor shall carry out the instruction he/ she receives from them in this matter.”76 A new Code of Criminal Procedure of the Kingdom of Cambodia was adopted in 2007,77 and a new Criminal Code went into effect in 2011.78 The new Criminal Procedure code ran to 612 articles, compared with 238 in the 1993 code. The 672 articles of the new Criminal Code dwarfed the 69 articles found in the 1992 UNTAC Criminal Code. These new codes were in many respects exemplary, reflecting a decade of dedicated work by Cambodian specialists, as well as input from a wide variety of French, Japanese, Australian, and American experts. Article 40 of the new Code of Criminal Procedure, however, specified that “In case of a serious offense, the Prosecutor shall make a report on the case to the General Prosecutor attached to the Court of Appeal who also shall submit that report to the Minister of Justice.”79 Article 29 provides that the minister of justice can direct the general prosecutor of the Court of Appeal or any prosecutor to carry out “orders which he thinks are appropriate.”80 Further, the same article specifies that “The General Prosecutor attached to the Court of Appeal has power over all Prosecutors who are under his territorial jurisdiction. He can issue an injunction to such Prosecutors to initiate proceedings against someone or to make conclusions he thinks are appropriate.”81 The minister of justice, of course, reports to the prime minister, so political control of the Cambodian judiciary remains ensured by law—notwithstanding that the independence of the judiciary is enshrined in the Cambodian constitution (articles 128 new and 130 new). But, as various commentators have noted, the Cambodian constitution is generally aspirational in character, rather than being a controlling source of legal authority. Thus Cambodia’s contemporary legal framework has a direct lineage to the Union of Soviet Socialist Republics and its ideology of instrumental legalism. It is also consistent with millennia-old Cambodian tradition: the word of the maximum leader is law. What this means in practice is that Cambodia operates under a system of rule by law, rather than rule of law. Legal procedures are directly used to enforce the political will of the ruler or rulers, rather than constraining those rulers through protections such

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FIGURE 1.1. Hun Sen visits CORKR, Washington, DC, 1992. (All photos by author)

as due process and human rights. For example, one can create laws that prohibit political dissent, making it putatively lawful to jail anyone who criticizes the powers that be, or to order the dissolution of political organizations attempting to peacefully challenge the existing regime through the ballot box. It is important to remember that much, if not most, of the world is currently governed by regimes that adhere to this legal ideology of revolutionary justice. For now, however, let us return to the moment when the Khmer Rouge regime came to a sudden end.

Chapter Two

VICTOR’S JUSTICE

Despite the 1948 adoption of the UN Convention on the Prevention and Punishment of the Crime of Genocide, there would be no “punishment” of genocide perpetrators during the Cold War years due to the geopolitical machinations of the great powers. When Cambodia staged a genocide trial for two top leaders of the fallen Khmer Rouge regime in 1979, then, it was a ground-breaking development in international criminal law, albeit one whose legitimacy and effectiveness were widely questioned in the Western world. That questioning led a handful of activists to spend the next two decades lobbying for another attempt to bring the Khmer Rouge to justice. Not until the late 1990s were conditions ripe for the leading powers of the UN Security Council, and the United Nations organization itself, to show serious interest in a genocide tribunal for Cambodia. But none of that could happen until the Khmer Rouge were driven from power in Phnom Penh. A BRISKLY ORCHESTRATED PROCEEDING

On December 20, 1978, Pol Pot gave the order to attack. Ten divisions of Khmer Rouge troops—upward of thirty thousand men—stormed across the Vietnamese border, taking the People’s Army of Vietnam (PAVN) unawares.1 Vietnamese units had been harassing Khmer Rouge forces along the borders of Cambodia’s Svay Rieng and Kampong Cham provinces for

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months, providing support to the struggling survivors of a massive purge that Pol Pot had launched against Democratic Kampuchea’s East Zone in May. He had evidently decided that a major offensive against Vietnamese territory would teach his meddling foes a lesson. Instead it was Pol Pot who would be taken to school. What Pol Pot and his colleagues failed to realize was that the other side of the CambodiaVietnam border was swarming with nearly a quarter of a million Vietnamese troops in the final phases of preparing to invade Democratic Kampuchea. Three Khmer Rouge divisions attacked east from Svay Rieng province, aiming to take Tay Ninh provincial town; the attackers ran into two full corps of PAVN troops, the 3rd and the 4th, comprising eight Vietnamese infantry divisions backed by six battalions of Cambodian rebels— roughly a six-to-one advantage to the defenders.2 Two more Khmer Rouge divisions attacked south from Takeo province into Vietnam’s Dong Thap province; there they ran into elements of six PAVN divisions, including the 2nd Corps, and again the defenders had a six-to-one advantage. Two Khmer Rouge divisions also attacked south from Takeo province into the Seven Mountains area of An Giang province, where they faced elements of PAVN’s 2nd  Corps. Finally, three additional Khmer Rouge divisions attacked south from Kampot province into the coastal regions of Ha Tien and Tra Pho; there a division-sized PAVN naval infantry force was mustering for the coming attack on Cambodia’s deep-water port at Sihanoukville. After absorbing the initial blows from Cambodia’s audacious assault, the People’s Army of Vietnam quickly annihilated the invading Khmer Rouge units, while accelerating their own timetable for invasion. Instead of the planned January 1 launch for the Vietnamese attack, on December 22, the PAVN’s 307th and 309th Divisions moved from Pleiku province into Cambodia’s Ratanakiri province, striking out for Stung Treng provincial town on the Mekong River. Pol Pot and his commanders had committed the majority of their main force to their ill-fated assault, and once the ten invading Khmer Rouge divisions had been decimated, Democratic Kampuchea retained but few reserve forces to resist the impending massive Vietnamese offensive. Thus by January 7, 1979—in a matter of days—the Vietnamese army had taken Cambodia’s capital and begun the process of installing a new government.

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For more than a year prior to the invasion, the Vietnamese had been cultivating several groups of disaffected Cambodian revolutionaries. Most of them had been part of the Khmer Rouge regime but had fled to Vietnam in the face of Pol Pot’s fierce internal purges. Military units assembled from these groups returned to Cambodia in the wake of the Vietnamese main strike forces, consolidating control over “liberated” territories and establishing rudimentary local administrations. From among the leadership of these Cambodian allies, the Vietnamese would mold a new government for Cambodia. Given the undeniable fact that this new government was being installed at the point of a Vietnamese bayonet, one of the first problems facing the nascent regime was the challenge of establishing its own political legitimacy. That challenge was multiplied by the fact that most of the new leaders had previously been members of the Khmer Rouge regime, and the Cambodian people had good reason to fear anyone associated with the Khmer Rouge. Thus, in part to disassociate the new regime from the old in the eyes of Cambodians, the Vietnamese and their clients decided to hold a genocide tribunal. It would be a quintessentially political piece of theater—and the process might even serve the cause of justice. Although it would be presented as a domestic Cambodian tribunal, in reality, the People’s Revolutionary Tribunal was an internationalized court. A delegation from the attorney general’s office of the German Democratic Republic traveled to Vietnam from April 9 to 24, 1979, to negotiate an agreement whereby East Germany would assist in preparations for and implementation of the trial.3 The Germans had prosecuted Nazi war criminals and had also conducted in absentia trials, so they had relevant experience to offer.4 But the East German role would remain secret. As the head of the German team put it in one internal memorandum, “My role in the preparation and implementation of the trial will of course remain unmentioned.”5 So too would the Vietnamese role. On May 10, 1979, the Vietnamese issued an order to assemble a secret “Cambodian Judicial Operations Team” that would assist their Cambodian allies in staging a tribunal for the “Pol PotIeng Sary Group.” 6 Preparations for the trial rapidly built up a head of steam. Within a matter of days, witness statements were being collected. The first on record was given on May 16.7 On May 22, a survivor named Dith Munty signed a

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statement testifying to the brutal criminality of the Khmer Rouge regime.8 Munty was eventually picked to play the role of Pol Pot and Ieng Sary’s defense counsel at the tribunal, and one day he would go on to become the regime’s highest legal official. Other preparations for the trial were also under way. The structure of the court had to be decided, and personnel had to be selected to staff it. Apropos of the East German and Vietnamese hidden hands working behind the scenes, a modified Soviet model was chosen. The bench in Soviet first instance courts consisted of a judge and two lay “assessors.” In Vietnamese courts, judges sit with two “people’s jurors” selected from the “Fatherland Front,” a communist party front organization, and they decide by majority vote.9 The People’s Revolutionary Tribunal would have ten “People’s Assessors” and four alternates, appointed by a decree from Heng Samrin, President of the People’s Revolutionary Council of Kampuchea.10 One of the People’s Assessors filed a statement as a victim, and another had submitted a technical report into evidence.11 They would be overseen by presiding Judge Keo Chanda, who also happened to be the minister of propaganda,12 a nod to the important educational and agitprop functions of the proceedings. Foreign personalities were recruited to participate in the tribunal. A wide spectrum of journalists was invited to record the proceedings, including reporters from France, Germany, Britain, India, Mexico, and Japan.13 Lawyers from Algeria, India, Laos, the USSR, and Vietnam attended the trial as observers.14 Additional lawyers from Cuba, Japan, Syria, and the United States were tapped for speaking roles at the trial—with U.S. lawyer John Quigley of Ohio State University offering his opinion on whether or not the crimes at issue constituted genocide.15 Another American attorney, Hope R. Stevens, was assigned to the defense team, joining Cambodians Dith Munty and Yuos Por. The prosecutor of the People’s Revolutionary Tribunal, Mat Ly, declared that he was opening an investigation on July 25, 197916—less than three weeks before the beginning of the trial—but, as we have seen, evidence had been accumulating since at least May. All manner of evidence was collected, through not only witness statements but also field investigations to gather physical evidence, captured documents, confessions of captured Khmer Rouge cadres, and analyses of the impact of the Khmer Rouge regime on Cambodia’s economy and society. Technical preparations were

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also necessary, including decisions about such legal issues as subject matter jurisdiction and personal jurisdiction. This latter issue must have occasioned considerable debate among those responsible for setting up the tribunal. Who should be tried? It was plain enough that the “group” of suspected perpetrators was a very large one, in theory constituting the personnel of the entire government of Democratic Kampuchea and the Communist Party of Kampuchea. Moreover, for the most part, these perpetrators were not only still at large but also still in command of considerable military forces. In the event, it was determined that the “Pol Pot-Ieng Sary Group” was a very small group indeed—just Pol Pot and Ieng Sary. Pol Pot was prime minister of the Khmer Rouge government of Democratic Kampuchea, and had been secretary of the Communist Party of Kampuchea (CPK) since 1963. As Democratic Kampuchea’s foreign minister, Ieng Sary was the international face of the Pol Pot regime. He was also Pol Pot’s brother-in-law, a deputy prime minister, and a member of the CPK’s all-powerful Standing Committee. These two were among the most well-known personalities of the Khmer Rouge regime. They both would certainly be on anybody’s list of prime suspects, but why charge only two? The answer was that Vietnamese intelligence services believed—incorrectly—that the actual number two figure in the Khmer Rouge regime, CPK Deputy Secretary Nuon Chea, was secretly sympathetic to the Vietnamese. He might be induced to defect to the new government along with most or even all of the defeated Khmer Rouge forces. Such an outcome would be a political coup of the first order, and would save the Vietnamese People’s Army the trouble of chasing down and eliminating the rump of the Khmer Rouge military apparatus. Thus the trial of Pol Pot and Ieng Sary not only would serve to legitimate the new regime but also was explicitly designed as a mechanism to splinter the Khmer Rouge movement, symbolically “decapitating” just two of its top leaders and thus theoretically providing an opportunity for the remainder to disavow the condemned pair and rally to the new government. And so the tribunal went forward, albeit without the defendants present before the court. On July 15, the new regime published “Decree Law No. 1,” publicly announcing the plan to establish a tribunal “to Try the Pol Pot-Ieng Sary Clique for the Crime of Genocide.”17 Exactly one month later, on August 15, 1979, the People’s Revolutionary Tribunal convened in Phnom Penh.18 The proceedings were conducted in an orderly fashion and,

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notwithstanding the raw emotions evoked by the testimony of many witnesses, the trial moved along at a brisk, precisely choreographed clip. Five days later, on August 19, 1979, Keo Chanda, the presiding judge, rendered the verdict: guilty of genocide on all counts, with a sentence of death in absentia. From a substantive and procedural point of view, however, the People’s Revolutionary Tribunal was little short of disastrous. To begin with, the Khmer Rouge were still recognized by the United Nations as the legal government of Cambodia, so it was not entirely clear that the new regime had the authority to hold such a trial in the first place. There were also problems in terms of substantive law. Decree Law No. 1 mentioned that “genocide is defined in international law.”19 That was certainly true, but it was also true that genocide was not defined in Cambodian law. Cambodia had never incorporated the Convention on the Prevention and Punishment of the Crime of Genocide into its municipal law, so technically genocide was not even a punishable crime. There were also procedural defects in the People’s Revolutionary Tribunal, foremost among them the fact that rather than defending their clients, the assigned defense counsel actually impeached their clients, testifying against them. The prosecutor, Mr. Mat Ly, did not do much better. Though Ly presented a huge pile of evidence to the court, almost nothing directly linked either of the two defendants to the alleged crimes. The sole exception was the witness statement from an alleged accomplice in a mass execution who testified that a district official had told him that the massacre was being done on the order of Pol Pot.20 One way to look at this trial is that it was a case of getting the right answer for the wrong reasons. In the end, though, none of that mattered. Although the People’s Revolutionary Tribunal did strive to follow the form of a proper court of law, the main point of the proceeding was not to perform some abstract, legally correct procedure. The point was to send a political message. Pol Pot and Ieng Sary were evil, and they were morally responsible for unspeakably heinous crimes. The new regime had condemned those crimes on behalf of all Cambodians. In so doing, it had presented compelling evidence that the Khmer Rouge regime had perpetrated death and destruction on a fantastic scale. For any cadre still loyal to the Khmer Rouge who, owing to their geographical isolation in a particular place, had been unaware of the extent of the mayhem carried out under Pol Pot’s orders, the evidentiary presentation

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might help them to realize that Pol Pot was an unworthy leader. If so, they would be welcomed back to the “national community” under the new regime’s policy of forgiveness.21 Those who fully confessed their crimes and asked for forgiveness would be subjected to three to five years of “reeducation.” However, those who performed a valuable service to the new regime might be eligible for a reduction in sentence. This policy would remain in effect for the next twenty years and was publicly mentioned as late as 1998, when Cambodian Prime Minister Hun Sen offered an amnesty to Khmer Rouge chieftain Khieu Samphan if he would “arrest” his colleagues, Nuon Chea and Ta Mok, on behalf of the Royal Government.22 But in 1979, fidelity to legal procedure was not the issue. The issue was the political struggle to eliminate the remnants of the Khmer Rouge regime and to consolidate state power under the banner of the new, de facto Cambodian government. In that sense, the new government saw the People’s Revolutionary Tribunal not only as a moral victory but also as a political triumph. IMPUNITY CHALLENGED

Notwithstanding this moral and political victory, the erstwhile convicts remained at large. They also remained armed and dangerous. The hope that the trial would encourage a fracture in the top ranks of the Khmer Rouge proved illusory. Moreover, much of the international community was totally unimpressed by the spectacle of the People’s Revolutionary Tribunal. Far from helping to capture the convicts and enforce their sentences, many states in the region and across the world instead began to assist the Khmer Rouge, supplying weapons, food, funds, political support, and other forms of aid to Pol Pot and his government in exile. The Khmer Rouge began to regain strength from their havens in neighboring Thailand. Even though the 1979 trial in Phnom Penh was viewed as a political farce in much of the world, it was clear to anyone who cared to examine the facts that the Khmer Rouge regime had indeed been “criminally insane,” as a member of Pol Pot’s “defense” team so aptly put it at the trial. The People’s Revolutionary Tribunal had failed to achieve any significant measure of real justice for this criminal insanity. Combined with the obvious fact that Pol Pot and his cohorts not only enjoyed impunity but also were plotting to regain the ability to continue their murderous revolution, the failure of the

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People’s Revolutionary Tribunal to render effective retributive justice spurred some to seek new ways to challenge the Khmer Rouge. Two of the first to take action were David Hawk and Gregory Stanton. Both were Americans, Hawk a human rights activist and Stanton a missionary. After four years as the executive director of Amnesty International USA, in 1980 David Hawk moved to Bangkok, where he became the director of the World Conference on Religion and Peace’s Khmer Program, monitoring international relief programs for Cambodia in the wake of the Khmer Rouge regime. His interviews with Cambodian refugees and visits to the Tuol Sleng Museum of Genocide so shocked him that he began to focus on gathering evidence showing what had happened under the Khmer Rouge. Meanwhile, having earned a degree from Harvard Divinity School, in 1980 Greg Stanton took a leave of absence from Yale Law School to serve as a field director in Cambodia for Church World Service. That experience would shape his life and subsequent career, as he dedicated himself to using the law to fight impunity for genocide. In June 1980, ten months after the People’s Revolutionary Tribunal, Stanton met with Hawk in Bangkok, where he proposed establishing a private organization to collect evidence about the Khmer Rouge regime and to lobby the international community for legal sanctions against its leaders.23 The two men began to build support for this plan, gathering specialized personnel to assist them in the work and visiting Cambodia to assemble information. In April 1981, Stanton began to work on the project full-time, and in June 1982, he formed the Cambodia Genocide Project to give a corporate identity to his efforts. Frictions on the team eventually led the two men to conclude that they could not collaborate effectively, and Hawk went on to found the Cambodian Documentation Commission in 1985.24 But the Cambodian Documentation Commission (CDC) and the Cambodia Genocide Project remained focused on a shared goal: finding some way to challenge Khmer Rouge impunity. Hawk initially focused on public advocacy and evidence gathering, while Stanton pursued a legal challenge to the Khmer Rouge. Hawk became a tireless campaigner, writing both polemics and scholarly articles, testifying at congressional hearings, generating media interest, lobbying the United Nations and States-Party to the Genocide Convention, and preparing evidentiary materials. The CDC assembled a wide range of evidence, including photographs of mass graves, Khmer Rouge documents and photographs

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from the internal security services demonstrating torture and mass executions, and oral history interviews with Cham and Buddhist survivors. Stanton focused his legal skills on the problem of building a case against the Khmer Rouge that would stand up in court, but the first problem was to find a court that would assert jurisdiction over such a case. Key members of the Khmer Rouge leadership were senior officials of the exiled Coalition Government of Democratic Kampuchea (CGDK), which was still recognized by the UN as the legitimate government of Cambodia. Stanton reasoned that because of this, the CGDK was vulnerable to a lawsuit at the International Court of Justice (ICJ) alleging that Cambodia was in breach of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide to prosecute acts of genocide that had been committed on its territory. Though the ICJ cannot find individual criminal responsibility, a decision against the CGDK on genocide would constitute a moral victory and might do significant political damage to Khmer Rouge prospects for regaining power in Cambodia. Only states have standing to bring a case before the ICJ, so Stanton launched a search for a country willing to do the right thing. In June 1986 that search took him to Australia. Bill Hayden, Australia’s foreign minister, initially gave Stanton a sympathetic hearing, expressing a commitment to file a case against the Khmer Rouge at the ICJ. As Hayden began to discuss the idea with his colleagues in the Australian government and word of his intentions began to seep out among Australia’s international allies, however, the proposal sparked vigorous opposition from the United States and Australia’s neighbors in the Association of Southeast Asian Nations (ASEAN). By the end of July, Stanton came to the conclusion that Australia would not move the case.25 His search for other possible candidates led to the disappointing conclusion that there would be no state willing and able to take the case. About the same time that Stanton hit the political wall in Australia, Hawk’s CDC also began to develop legal strategies. Like Stanton’s Cambodia Genocide Project, the CDC had determined that the most promising line of attack against Khmer Rouge impunity was to find a state willing to bring a case against them before the ICJ. Moreover, the CDC had been doing its homework. Working with attorney Hurst Hannum, by September 1986, Hawk had drafted a 216-page memorandum outlining the factual and legal case against the Coalition Government of Democratic Kampuchea.26 They

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then started looking for a state that would carry the case to the ICJ. Meetings with officials from Australia, the United States, the Netherlands, Sweden, and Norway found some moral encouragement, but no one willing take on the case. By the following year, they decided to take their appeal public, and on April 7, 1987, the CDC launched a campaign to persuade at least one member of the international community to live up to their responsibilities under the Genocide Convention and challenge the Khmer Rouge at the World Court. No state stepped forward in response to the appeal. POLITICAL CALCULATIONS

Meanwhile, in Cambodia, the civil war and the Vietnamese military occupation were approaching their tenth year, and the military situation was firmly stalemated. The Vietnamese could not root out the Khmer Rouge guerillas, who could always retreat across the border to sanctuaries in Thailand when faced with superior force. The Khmer Rouge and their allies could not defeat the Phnom Penh regime on the battlefield because the population was strongly united to resist a return to Khmer Rouge rule, and because the Vietnamese were there to back up the Phnom Penh government. But the countries supporting this proxy war—the USSR and its communist bloc backing Vietnam and the Phnom Penh regime, and China, the United States, the ASEAN states, and others supporting the Khmer Rouge and their allies—were tiring of the prolonged military stalemate. An inconclusive series of peace talks among the interested parties had been hosted by concerned countries in the region, but international pressure was building for a comprehensive negotiated political solution.27 Simultaneously, domestic pressure was building in Vietnam to bring their troops home from the long incursion into Cambodia. By the beginning of 1989, it was becoming clear to the leadership of the Phnom Penh regime that they would soon be forced to accept a political solution to the long war. The Vietnamese military was preparing to withdraw from Cambodia later that year, and plans were brewing for a major international peace conference in Paris aiming to settle the conflict. With the fall of the Berlin Wall in November 1989 and Soviet leader Mikhail Gorbachev’s decision to allow multiparty elections in May 1990, the accumulating forces were on the verge of exploding the Soviet’s Eastern European

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empire and ripping apart the Soviet Union itself. Thus the constellation of geopolitical forces that had enabled the Phnom Penh regime to withstand a decade of rebel attacks was about to dissipate. Faced with the possibility that the Khmer Rouge might win at the negotiating table what they had been unable to seize on the battlefield, the Phnom Penh regime needed to find a way to capture the political initiative. So, a decade after the People’s Revolutionary Tribunal had failed to earn much respect from the international community, Phnom Penh issued a new call for genocide justice, this time at a genuinely international forum whose legitimacy could not be questioned: the International Court of Justice. The government organized the International Seminar on the Genocide Phenomenon and Prevention of Their Return Held in Phnom Penh, Cambodia, July 22nd, 1989. Exactly who attended remains unclear, but the plea contained in an “Appeal” published in the name of the seminar was plain enough:28 Now, the Cambodian conflict nears its end, a political and peace settlement is in sight in spite of the Khmer Rouge insurgency. . . . The prospect for peace in Cambodia has been welcomed by all civilized and humane people around the world and the same people absolutely oppose any return to power by the Khmer Rouge. . . . We call upon international lawyers and democratic governments to assist in bringing the Khmer Rouge leadership and organization to the international court of Justice in conformity with the UN Convention on the Prevention and Punishment of the Crime of Genocide. Failing to do this will mean that the UN Convention is a meaningless scrap of paper and the United Nations a club of mindless and selfish people at the expense of the “expendable” Cambodian people.

It was no coincidence, as Marxists like to say, that this appeal was issued on July 22, 1989. Two days later, Cambodian Prime Minister Hun Sen dined in the outskirts of Paris with the former king, Prince Norodom Sihanouk, who was also the nominal head of the resistance coalition.29 Hun Sen was a peasant boy who had risen to the rank of military commander in the Khmer Rouge before defecting to Vietnam in 1977 and was then made foreign minister by the Vietnamese in 1979, rising to the post of prime minister in 1985. In person, Hun Sen could give the impression of being a coiled serpent, a massive Naga, taut, ready to strike. At other times, he could be

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relaxed, folksy, and voluble. In any circumstance, he was not to be underestimated. His 1989 encounter with Sihanouk was the initial preparatory meeting for the Paris International Conference on Cambodia. The next day, Khieu Samphan arrived in Paris to represent the Khmer Rouge at the talks; Samphan was a Paris-educated intellectual who had been a minister under Sihanouk while secretly a member of the communist party, and later rose to become the head of state for the Khmer Rouge regime. On July 30, 1989, the month-long international peace conference was to formally convene. Therefore, just a few days before sitting down to negotiate peace with his primary adversaries, Hun Sen had called for Khieu Samphan and his colleagues to be hauled off to court. He was starting to become adept at using legal and judicial tools for political purposes. The peace conference began with a three-day ministerial meeting, and just in case anyone had missed the “Appeal” of the conference in Phnom Penh the week before, in his opening address Hun Sen reiterated his demands that the Khmer Rouge face a tribunal. In this statement, however, he sharpened the attack, calling not merely for a case at the ICJ but for the imposition of individual criminal responsibility by moving to “try the leading core of the PDK [Party of Democratic Kampuchea, the new official name of the Khmer Rouge] before an international tribunal.”30 With this degree of animus between the principals at the conference, it came as no surprise that they were unable to make substantive progress in the negotiations. By the end of the conference, Hun Sen’s position on the Khmer Rouge had, if anything, only hardened. “Internal reconciliation” in Cambodia, he declared, “depends on the outcome of the genocidal Pol Pot regime’s elimination.”31 But by playing the genocide justice issue as a political card at the Paris peace conference, Hun Sen might have opened himself to unforeseen difficulties far in the future. Clearly, the Phnom Penh regime was not ready to make peace with the Khmer Rouge. The feeling was mutual, since the Khmer Rouge position at the peace talks was that the dismantling of the Phnom Penh regime was a prerequisite to meaningful dialogue. But both would have to accommodate themselves to the fact that their respective foreign sponsors were determined to de-internationalize the war. The external pressures on the principal combatants inexorably escalated as it became obvious that the international community intended to bring international peace to Cambodia, if

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not internal peace. The external disengagement was gingerly negotiated among the great powers, and they then moved to impose a four-party solution on the fractious Cambodians. Under the terms of the arrangement, the United Nations would supervise free and fair elections in Cambodia, allowing the Cambodian people to choose their national leadership from among the four factions: the Phnom Penh regime, the Khmer Rouge, the royalists who remained loyal to former King Norodom Sihanouk and his pre-1970 regime, and the republicans who remained loyal to the 1970– 1975 Lon Nol regime. A little more than two years after the initial Paris International Conference on Cambodia, again in Paris, the deal was done on October 23, 1991. To pave the way for this peace pact, a great deal of behind-the-scenes negotiation was required in far-flung capitals, on issues that did not necessarily relate directly to the question of a political settlement in Cambodia. Diplomatic relations between China and Vietnam had been severed ever since China invaded Vietnam in 1979, aiming to “teach a lesson” following the Vietnamese invasion of Cambodia. The leadership of the Vietnamese Communist Party wanted badly to heal that rift and reestablish relations with China, but the Chinese had been coy. At the end of July 1991, the Chinese finally named their price for renewed relations: the Vietnamese must henceforth drop any mention of a “genocide” having taken place in Cambodia.32 The Vietnamese Politburo agreed to this condition, and the change in policy enabled not only a resumption of diplomatic relations between China and Vietnam but also an agreement on the Paris Peace Accords for Cambodia. Far into the future, the Vietnamese government would refuse to cooperate with any effort to investigate the Cambodian genocide, despite the fact that Vietnamese archives are believed to contain voluminous evidence of what happened during the Khmer Rouge rule of Cambodia. The policy of the U.S. government had also begun to shift, but in a different direction. Though the United States had long been opposed to the Khmer Rouge returning to power, it had not been prepared to answer the appeals from Phnom Penh for a Khmer Rouge genocide tribunal. Yet, in response to pressure from the U.S. Congress, the Bush administration had conceded that it appeared acts of genocide had taken place under the Khmer Rouge.33 “The administration has been exploring a variety of means for bringing Pol Pot and other discredited leaders to justice,” the State Department legal

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advisor wrote to Congress in 1989.34 “From a legal point of view,” he told Congress,35 We continue to believe that the trial of Pol Pot and others by a future government of Cambodia, formed after elections, would be the most effective procedure for imposing punishment. Pol Pot and others have committed numerous acts that we assume are crimes under domestic Cambodian law. Moreover, Cambodia has been a party to the Genocide Convention since 1950 without reservation. Because Cambodia is the place the acts were committed, Cambodia is the only country with an obligation to bring domestic prosecution under the Genocide Convention, as provided in Article VI.

As to the nature of the crimes in question, for the first time, the U.S. government officially described them as genocide. The legal advisor noted that the UN Special Rapporteur on Genocide had reported on July 2, 1985, “that Pol Pot’s Khmer Rouge government of Democratic Kampuchea was guilty of genocide ‘even under the most restricted definition.’ . . . We agree with that assessment.”36 At the closing session of the Paris conference in October 1991, U.S. Secretary of State James Baker publicly reaffirmed this policy in his address. “Cambodia and the United States are both signatories to the Genocide Convention,” Secretary Baker told the conference, “and we will support efforts to bring to justice those responsible for the mass murders of the 1970s if the new Cambodian Government chooses to pursue this path.”37 For some observers, however, merely calling what happened in Cambodia by the name of genocide and articulating a conditional policy to do something about it, perhaps, at some time in the future, was not a satisfactory policy. INTERNATIONAL MOMENTUM BUILDS

On December 12, 1989, a group of representatives from private relief and development agencies working in Cambodia met in Stony Point, New York, to discuss advocacy strategies aimed at transforming U.S. policy toward Cambodia.38 The group resolved to form a campaign organization, and one month later, on January 11, 1990, they met again in Washington, DC, establishing the Campaign to Oppose the Return of the Khmer Rouge (CORKR). The original prime objective of CORKR was to prevent a four-party

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solution from emerging in the Cambodian peace talks, which would provide legitimacy to the Khmer Rouge and allow them to seek a return to power in Phnom Penh through electoral competition. The group lobbied mightily over the next two years, attempting to head off what it saw as a morally indefensible political outcome. When the Paris Peace Accords yielded precisely that outcome on October 23, 1991, CORKR fell into a major organizational crisis. Three months later, the organization regained its footing under new leadership and adopted a new advocacy strategy.39 If the Khmer Rouge were going to compete peacefully for power under a system based on the rule of law, they would have to face their own legal responsibilities. CORKR set out to change the U.S. commitment to support retributive justice for the Khmer Rouge from a declaratory policy to the law of the land. CORKR immediately launched into work with the congressional staffs of Senator Charles Robb (D-VA) and Representative Steven Solarz (D-NY) on legislation that would legally commit the U.S. government to work toward bringing the Khmer Rouge to justice before an international tribunal. On April 10, 1992, Senator Robb introduced S.2622, The Khmer Rouge Prosecution and Exclusion Act, and several months later, Representative Solarz introduced a parallel piece of legislation in the House of Representatives, HR.5708, The Khmer Rouge Prosecution Act.40 Both bills were staunchly opposed by the Bush administration on the grounds that they were inconsistent with the peace process under way in Cambodia, and both died in committee. Solarz was defeated for reelection in November 1992, but the following year, Robb reintroduced the legislation as Title VI of S.1281. Robb’s legislation would mandate the establishment of a State Department Office of Cambodian Genocide Investigation and direct that office “to investigate crimes against humanity committed by national Khmer Rouge leaders in the period beginning on April 17, 1975 and ending January 7, 1979.” 41 The bill also would direct the Office of Cambodian Genocide Investigation “to develop the United States proposal for the establishment of an international criminal tribunal for the prosecution of those accused of genocide in Cambodia.” Once the legislation was drafted and introduced, CORKR intensified its lobbying campaign for the bill. In Cambodia, meanwhile, the peace process had encountered some difficulties. Pol Pot had decided that he did not like the way the UN intervention was unfolding and declined to allow his followers to participate in the elections planned for July 1993. Moreover, the military demobilization and

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disarmament provisions of the Paris Peace Accords had fallen entirely by the wayside, with sporadic combat between the Khmer Rouge and Phnom Penh’s forces occurring all around the country. Amid this disarray, the UN performed well in successfully carrying out the elections, despite the general collapse of the carefully crafted peace plan. The royalist and republican factions, formerly allied with the Khmer Rouge, were joined through the election with the Phnom Penh regime in a new coalition government. The previously strident demands for a Khmer Rouge tribunal voiced by Hun Sen during the Paris negotiations then became distinctly muted. He was now nominally relegated to the post of second prime minister, and partnered with Prince Norodom Ranariddh, who had become first prime minister. As the coalition government grappled with the thorny issue of how to deal with the recalcitrant guerilla movement, Hun Sen acquiesced to his new partner’s demand that he back off on the threat of a tribunal. Back in Washington, however, momentum for genocide justice in Cambodia was building. The new Clinton administration initially followed a policy of continuity with its predecessor in opposing Senator Robb’s legislation, but CORKR had begun to carefully target the home constituencies of key committee members in Congress, and that pressure was having an effect on the negotiations between Congress and the administration. Combined with the failure of the Khmer Rouge to honor their commitments to the peace process, the advocacy campaign turned the tide. On April 13, 1994, as U.S. ambassador-designate to Cambodia Charles Twining was enduring his confirmation hearing before a committee chaired by Senator Robb, Twining announced that the administration was prepared to compromise on Robb’s Khmer Rouge tribunal initiative.42 If the senator would agree to amend the bill so that any investigation of the Khmer Rouge would be carried out by a private organization, rather than by the U.S. government, it was Twining’s “personal opinion” that an agreement could be reached with the administration. Two weeks later, on April 29, the U.S. Congress adopted the Cambodian Genocide Justice Act, and the next day, it was signed into law by President Clinton.43 It had become the law of the land that it was “the policy of the United States to support efforts to bring to justice members of the Khmer Rouge for their crimes against humanity committed in Cambodia between April 17, 1975, and January 7, 1979.” 44 CORKR proceeded to negotiate with the State Department about how the Cambodian Genocide Justice Act would be implemented. Meanwhile,

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in Cambodia, Hun Sen had prevailed upon his royalist coalition partners to secure the legislative passage of a “Law on the Outlawing of the Democratic Kampuchea Group.”45 The Khmer Rouge were becoming increasingly isolated. The Thai military had negotiated lucrative business deals with the Khmer Rouge to extract natural resource products from Khmer Rouge zones in Cambodia, but other than this continuing Thai support, international assistance—which had come principally but not exclusively from the Chinese—had completely dried up. Inside Cambodia too the Khmer Rouge were losing what little appeal they had retained. Khmer Rouge propaganda continued to insist that Cambodia was occupied by the Vietnamese People’s Army and that Pol Pot’s troops were the only thing preventing a complete takeover by Vietnam, but this appeal began to sound more and more bizarre to most Cambodians, who had not seen any Vietnamese soldiers for years. Khmer Rouge military commanders also increasingly wondered where in the world all these Vietnamese troops might be hidden, despite the obsessive talk from Pol Pot. Tiring of seeing only their Khmer brothers over their gun sights, they increasingly defected to the Royal Government. It was in order to exploit this trend that Hun Sen pushed through the Law on the Outlawing of the Khmer Rouge. This legal measure codified a policy that the government had followed since 1979, promising amnesty to any rank-and-file Khmer Rouge who defected within a six-month period, while barring amnesty for all Khmer Rouge leaders. As a result of this new law, a significant swath of local Khmer Rouge military leaders began to quietly negotiate terms of surrender with their counterparts in the Royal Armed Forces. In December 1994, after a competitive bidding process, the U.S. State Department concluded a Cooperative Agreement with Yale University’s Cambodian Genocide Program (CGP) to carry out the investigation mandated by the Cambodian Genocide Justice Act. The Yale team, led by Ben Kiernan, quickly moved to establish an office in Phnom Penh called the Documentation Center of Cambodia.46 By this time, Greg Stanton had become an official of the U.S. Department of State, where he was in a position to assist the CGP’s work.47 Moreover, David Hawk of the Cambodian Documentation Commission would soon become an official of the United Nations, attached to the UN Center for Human Rights in Phnom Penh, where he would play a key role in the ongoing struggle to achieve retributive justice for the Khmer Rouge. For the time being, however, the United

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Nations was showing no interest in the issue of genocide justice in Cambodia. In fact, the UN’s Special Representative of the Secretary-General for Human Rights in Cambodia, Australian Justice Michael Kirby, issued a report in November 1994 specifically denying that genocide had occurred in Cambodia. He argued that the Genocide Convention “does not include reference to ‘political groups’ . . . (therefore) the massacres committed by the Khmer rouge, which have all the characteristics of a genocide, cannot be classified as such.” 48 As the CGP’s Documentation Center of Cambodia set about organizing its investigation, the effort was warmly greeted by the Royal Government. While some leaders of the royalist party were cool toward the program, officially, the Royal Government pledged its full cooperation, granting logistical support and security assistance and promising access to any location controlled by the Royal Government that the CGP’s investigators wished to examine. Hun Sen’s Cambodian People’s Party (CPP) was especially enthusiastic about the project. The security assistance offered by CPP Interior Minister Sar Kheng was particularly welcomed by Documentation Center personnel, as the Khmer Rouge had reacted badly to the program, accusing the Yale academics of committing “genocide” against Cambodians and vowing to assassinate the entire team.49 The Documentation Center pressed on nonetheless, and in July 1995 launched a mass grave-mapping project that soon revealed that the incidence of “killing fields” around Cambodia was far higher than scholars had previously realized. The mapping effort, in particular, generated intense worldwide media coverage. The momentum toward genocide justice in Cambodia continued to grow. In August 1995, in cooperation with the U.S. Department of State, Yale’s CGP organized an international conference in Phnom Penh, hoping to stimulate discussion within the Royal Government on options for addressing violations of international law during the Khmer Rouge regime. The International Conference on Striving for Justice: International Criminal Law in the Cambodian Context brought experts in international law together with senior officials of the Cambodian government and National Assembly in a seminar-style setting. There was a great deal of apprehension among Cambodian politicians regarding the entire issue of justice for the Khmer Rouge, and as the conference invitations went out, at first there were few solid commitments to attend. Soon it became known, however, that both First Prime Minister Prince Norodom Ranariddh and Second

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Prime Minister Hun Sen would attend and address the conference. RSVPs subsequently ballooned. Prince Ranariddh gave the opening address, telling the gathered officials that “the high leaders of the Khmer Rouge responsible for the atrocities must be caught, brought before the law, and punished accordingly, if necessary, under the war tribunals act in the framework of an International Criminal Court.”50 Second Prime Minister Hun Sen spoke to the conference the next day, and he took the opportunity to complain about how cooperation with the royalist party in the coalition government had forced him to retreat from his insistence on genocide justice for the Khmer Rouge. He argued that now was the time to overcome the resistance of some in his government: I had to retreat to get national reconciliation . . . Some people mentioned the urgent need for national reconciliation and national reconstruction, not to bring Pol Pot to justice. From 1993–1995, we had to shut our eyes. . . . Why don’t we find justice for the dead people? We should not allow politics to interfere with the law. . . . The government and parliament of Cambodia support the sentencing of Pol Pot by a national or international court. . . . If we carry it out at an international court of justice, it would be better. What happened was a Crime Against Humanity, so it should be done this way, that would be best.51

Thus, in the sphere of Cambodian domestic politics, the issue of a Khmer Rouge tribunal was once again fully in play, with the top leadership of both principal parties in the coalition government having publicly pledged their support for the establishment of an international tribunal. In the weeks that followed, Hun Sen began to demand that the CGP prepare a draft tribunal law to be submitted to the Cambodian National Assembly in accordance with the stated wishes of the co-prime ministers. The CGP leadership was hesitant, fearing that this task was beyond both their expertise and their mandate. As the months went by, the second prime minister’s demands become increasingly insistent, and finally Hun Sen sent a message to CGP officials suggesting that the government’s cooperation with the Yale genocide investigation might be in peril should they continue to resist his entreaties. Reluctantly, the CGP then prepared a four-page draft law that in essence constituted a formal, legal request by Cambodia’s National Assembly to the international community for the establishment of an international criminal tribunal to try the top Khmer Rouge leaders.52

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Should the international community fail to respond to this request within a reasonable period of time, the draft law specified, Cambodia would proceed to establish its own special criminal tribunal to address the issue of genocide justice. The draft law was transmitted to Second Prime Minister Hun Sen, who forwarded it to the Council of Ministers, where the draft was vetted by the government’s legislative policy shop. In mid-1996, CGP officials were told that the draft tribunal law had been informally approved by the government and had been placed on the agenda of the Council of Ministers, which would soon vote to send it to the National Assembly for debate and adoption. Then, without explanation, CGP officials learned that the draft law had suddenly been withdrawn from the Council of Ministers agenda. The reason would soon become evident: a senior Khmer Rouge leader was negotiating a peace deal, and a Khmer Rouge tribunal might be inconsistent with that deal. In August 1996, senior Khmer Rouge leader Ieng Sary led the entire western zone of the Khmer Rouge in a mass defection to the Royal Government. In accordance with long-standing CPP policy, he was soon rewarded for this service. His reward came in the form of a royal pardon from King Sihanouk, even though such an act appeared to be contrary to Cambodian law under the 1994 Law on the Outlawing of the Democratic Kampuchea Group.53 But mere laws would be no bar to the urgent business of bringing an end to the long war; Sary’s defection inflicted a critical blow on Khmer Rouge military capabilities. Ieng Sary’s pardon, however, was very specific: it washed away the death sentence of the 1979 People’s Revolutionary Tribunal and held him harmless under the provisions of the 1994 anti-Khmer Rouge law. In the days that followed the king’s signing of the pardon, the king and both prime ministers publicly asserted in individual statements that the pardon would not be a bar to future prosecution of Ieng Sary by an international tribunal.54 Nonetheless, the momentum toward the establishment of a tribunal had once again been lost. THE UN TAKES AN INTEREST

At about this same time, in June 1996, a new incumbent in the office of UN Special Representative of the Secretary-General for Human Rights in Cambodia completed his first mission to Cambodia. Ambassador Thomas

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Hammarberg of Sweden was a longtime champion of international human rights, including having served as Secretary General of Amnesty International from 1980–1986. It soon became clear that he was going to bring a much more activist orientation to the job of special representative than his predecessor had displayed. In early April 1997, the U.S. government suggested to the UN Commission on Human Rights that it put an item on its agenda relating to accountability for the Khmer Rouge. On April  11, UN Commission on Human Rights Resolution 1997/49 called for Hammarberg to “examine any request by Cambodia for assistance in responding to past serious violations of Cambodian and international laws as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of international accountability.”55 There had been no such request from the Cambodian government, at least not in formal terms, but Hammarberg was about to change that. Hammarberg visited Cambodia again in mid-June 1997. He called first on First Prime Minister Norodom Ranariddh and later met with Second Prime Minister Hun Sen. The Swedish diplomat had previously raised the question of possible UN assistance in organizing a Khmer Rouge tribunal with the co-prime ministers in an informal manner, and the Cambodian leaders had casually told him that this might be an interesting idea. This time, Hammarberg carried an official mandate from the United Nations. He told Hun Sen that the UN Secretary-General would be favorably disposed to any request from the Cambodian government for assistance, and that in similar recent instances—Yugoslavia and Rwanda—the process of UN involvement had commenced with a commission of inquiry. The ball was in Cambodia’s court if they wished to proceed in this fashion, he told the leaders.56 Ranariddh asked Hammarberg to draft an appropriate letter of request to the secretary-general. The former director of the Cambodian Documentation Commission, David Hawk, was now serving as acting director of the UN Human Rights Center in Phnom Penh. At Hammarberg’s direction, Hawk asked the UN Center’s legal officer, Brad Adams, to draft a letter from the co-prime ministers to the UN Secretary-General requesting assistance in organizing a Khmer Rouge tribunal. Hawk and another key UN Center staffer, Christophe Peschoux, edited the letter, had their Cambodian staff translate it, and

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then forwarded it to the offices of the co-prime ministers. The operative portions of the brief letter stated: On behalf of the Cambodian Government and people, we write to you to ask for the assistance of the United Nations and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979. . . . Cambodia does not have the resources or expertise to conduct this very important procedure. Thus, we believe it is necessary to ask for the assistance of the United Nations. We are aware of similar efforts to respond to the genocide and crimes against humanity in Rwanda and the former Yugoslavia, and ask that similar assistance be given to Cambodia.57

The prime ministers both signed the letter, and it was sent to the UN Secretary-General in New York. The stage was now set for the United Nations to take a central role in the long quest for retributive justice in the case of Cambodia’s Khmer Rouge. Once again, it appeared that new momentum had been injected into the search for genocide justice in Cambodia. This time, moreover, it was not just the Cambodian government, the U.S. government, or private organizations providing the motive force. The United Nations organization itself was for the first time fully engaged in the process. But the situation was more complex than the surface appearances seemed to suggest. The day after Norodom Ranariddh and Hun Sen signed the letter to the UN Secretary-General requesting assistance in organizing a Khmer Rouge tribunal, the two Cambodian leaders received Thai Prime Minister Chavalit Yongchaiyuth in Phnom Penh. At the meeting, according to a document later released by Ranariddh’s cabinet, Hun Sen asked the Thai leader to grant asylum in Thailand to several senior Khmer Rouge leaders, including Pol Pot, Ieng Sary, and Ta Mok.58 Hun Sen, a master tactician, was pursuing multiple approaches to the problem of eliminating the Khmer Rouge movement. Inducing the establishment of an international tribunal to prosecute the Khmer Rouge leadership would be a major blow to the viability of the rebel movement, but if Thailand would cooperate in arranging the “retirement” of the Khmer Rouge leaders, so much the better. The Khmer Rouge camp, meanwhile, had just imploded. Recriminations following Ieng Sary’s defection the previous autumn had continued to

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reverberate among the senior leaders. Complicating this already tense situation, differences of opinion had also arisen among the top Khmer Rouge leaders regarding whether or not to negotiate with the Royal Government, and if so, with whom to negotiate—the royalists or the CPP or both—and about what. Sensing disloyalty among his followers, on June 9, 1997, Pol Pot ordered the execution of several of his heretofore most dedicated minions. Military leader Son Sen and his wife, Yun Yat, were murdered that night by troops loyal to the supreme leader. However, Khmer Rouge strongman Ta Mok got wind of the purge, and, fearing that he might be next, launched a counteroffensive against Pol Pot. After a ten-day standoff, Pol Pot and a coterie of senior Khmer Rouge political figures surrendered to Mok’s forces. A few weeks later, Pol Pot was condemned in a summary jungle proceeding and sentenced to life under house arrest for the crime of killing Son Sen and Yun Yat. The Khmer Rouge kangaroo court did not dwell on the issue of Pol Pot’s millions of other victims.59 In Phnom Penh, the situation had become even more chaotic, as the Royal Government also imploded in a spasm of fighting between military forces loyal to the two feuding prime ministers. Soldiers answering to Hun Sun quickly crushed the forces fighting on behalf of Norodom Ranariddh, while the first prime minister sought refuge in Bangkok. The entire country went into a state of shock, as the national reconciliation everyone thought had been achieved between the royalists and the People’s Party suddenly proved to be an illusion. And once again, the momentum toward the establishment of a Khmer Rouge tribunal seemed to have been derailed, as the international community focused on dealing with a political crisis that threatened to completely undo the results of the United Nations peace process. Hammarberg, however, was undeterred. In the months that followed the July 1997 crisis in Phnom Penh, he canvassed the leaders of all factions of the Royal Government and obtained commitments that they still supported the intent of the June 21 letter to the secretary-general requesting assistance in establishing a tribunal. Thus, while the process would not make significant progress until Cambodia’s immediate political crisis was resolved, it appeared that there remained a political consensus among Cambodian leaders to move the issue of genocide justice forward. In December, the United Nations General Assembly took note of the June 21 letter from the co-prime ministers, issuing a resolution asking “the Secretary-General to examine the request by the Cambodian authorities for assistance in

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responding to past serious violations of Cambodian and international law, including the possibility of the appointment . . . of a group of experts to evaluate the existing evidence and propose further measures.” 60 WASHINGTON PICKS UP THE PACE

As Phnom Penh was descending into what would be a nearly year-long paralyzing political crisis, Washington suddenly leaped into the fray with a veritable frenzy of accountability-related activity. The day after Cambodia’s coprime ministers had written to the UN Secretary General seeking assistance for a Khmer Rouge tribunal, Secretary of State Madeleine Albright telegraphed U.S. interest in the issue, saying, “We will be seeking to make sure that there is international justice carried out against this major war criminal.”61 Senior State Department officials were already developing strategies to jump-start some kind of Khmer Rouge accountability process. With the support of Secretary Albright, Ambassador-at-Large for War Crimes Issues David Scheffer started cycling through a menu of possible options for bringing the Khmer Rouge to justice. When he was senior advisor and counsel to Albright during her years as U.S. Permanent Representative to the United Nations, he had focused on war crimes issues and played a key role in the establishment of the Yugoslavia and Rwanda tribunals.62 During his Senate confirmation hearing for his nomination to be ambassador, he told the Senate Foreign Relations Committee, “If confirmed, I would focus immediately on the former Yugoslavia, the Great Lakes region of central Africa, Cambodia, and Iraq as areas where serious violations of international humanitarian law have occurred and demand our most serious attention.”63 Scheffer’s focus on Cambodia was indeed immediate, and it was laserlike. Scheffer’s efforts were initially stimulated by the possibility that the top Khmer Rouge leader could be taken into custody. In late June 1997, when it became apparent that Pol Pot had been toppled as leader in an internal Khmer Rouge coup, First Prime Minister Ranariddh began publicly asserting that he might be able to obtain custody of the fallen dictator. On June 20, Prince Ranariddh claimed that Pol Pot was “trapped,” and that we “hope we will be able to capture Pol Pot alive.” 64 These comments opened up a new set of possibilities for accountability in Cambodia, and the U.S. government seized on the opportunity to develop plans for prosecuting the Khmer Rouge leader.

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One option for the U.S. government was to obtain custody of Pol Pot and prosecute him in the United States. Scheffer asked the Justice Department to evaluate whether Pol Pot might be domestically prosecuted on charges of murder for the deaths of four U.S. citizens at Tuol Sleng Prison. It soon became apparent that U.S. law at that time permitted such prosecutions only in cases where the victim was an official of the U.S. government, and the American Tuol Sleng victims were private citizens. Scheffer thus abandoned that option, but the notion of U.S. prosecutions arose again in March 1998 when U.S. Deputy Attorney General Eric Holder advised Scheffer that the Department of Justice had developed a theory that might, in principle, allow Pol Pot to be prosecuted in the United States. In August 1998, however, Attorney General Janet Reno rejected that theory, and thereafter the U.S. government did not pursue the possibility of domestic prosecutions.65 While the domestic prosecution option was playing out inside the Clinton administration, Scheffer and his colleagues at the State Department were also developing other possibilities for Khmer Rouge accountability. On June 10, 1997, Scheffer—who at this juncture had not yet been confirmed as ambassador—worked with the Director of State’s Policy Planning Staff, Gregory Craig, to prepare a memo for Secretary of State Albright, recommending that she seek the establishment of a Khmer Rouge tribunal by means of a treaty to be agreed upon among members of the G-7 industrial nations. A little more than a week later, at the foreign ministers’ meeting prior to the annual G-7 summit in Denver, Albright proposed two possibilities for bringing the Khmer Rouge leaders to justice: “Plan A” involved the G-7 treaty-based approach initially suggested by Scheffer and Craig, and “Plan B” was to establish an ad hoc international tribunal under the Chapter VII powers of the UN Security Council. Although these ideas received a cool reception from the G-7 ministers, Scheffer proceeded to develop both options.66 At the same time, Scheffer was also considering potential applications of the theory of universal jurisdiction. This option would exploit the legal capabilities of countries whose domestic judicial structure allowed the prosecution of non-nationals accused of international crimes. At the Denver G-7 meetings, Secretary Albright informally approached her Canadian counterpart, Lloyd Axworthy, as to whether Canada might be willing and able to bring Pol Pot and/or other senior Khmer Rouge leaders to justice under its domestic law. Axworthy quickly rejected the suggestion, insisting

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that Canada did not have the appropriate laws in place.67 Scheffer pursued the option with several other U.S. allies, including Germany, Spain, Denmark, Sweden, the Netherlands, Australia, and Israel.68 None was willing to take up the challenge. As these various options continued to play themselves out though the winter of 1997, the United States intensified its efforts to gain physical custody of Pol Pot. On November 27, Hun Sen and Cambodia’s recently elevated First Prime Minister Ung Huot sent a letter to President Clinton, asserting that Cambodia wished to see an “international criminal tribunal” established to try the Khmer Rouge and asking the United States for assistance in creating such an organ.69 This signal from the Cambodian leadership fanned the flames of Ambassador Scheffer’s burning desire to achieve a breakthrough on the Khmer Rouge accountability issue. From late 1997 into the first months of 1998, an intense burst of multilateral diplomatic activity unfolded among Cambodia, Thailand, the United States, and, oddly, the tiny island country of Palau—about two and a half times the size of Washington, DC—in the Pacific Ocean. U.S. officials were developing a detailed operational plan to seize Pol Pot and hold him in Palau until an appropriate judicial mechanism could be created. By early April, the government of Palau had agreed to hold Pol Pot on behalf of the United States. All the pieces seemed to be in place, although U.S. officials remained concerned about one crucial element of the Pol Pot capture plan: cooperation by the Thai military, whose role in the scheme was to accomplish the physical detention of Pol Pot on Cambodian territory and then turn him over to the United States in Thailand. On April 4, 1998, President Clinton issued an executive order authorizing U.S. assets to be employed in executing the apprehension plan for the fallen Khmer Rouge leader. The intrigue heightened as the new Khmer Rouge maximum leader, Ta Mok, began to contemplate what he might be able to get in exchange for his prize captive. Unexpectedly, however, the secret initiative was compromised by a leak in Bangkok, and on April 15, 1998, Pol Pot learned through a Voice of America broadcast that his erstwhile colleagues were mulling the idea of turning him over to the Americans. Later that same night, Pol Pot died under circumstances that remain mysterious. During a trip two days later in Santiago, Chile, President Clinton publicly declared that Pol Pot’s death would not deter the United States from seeking to bring his surviving henchmen to justice. At the State Department,

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Scheffer and his colleagues were preparing to unveil another option from their arsenal of accountability ideas: a Chapter VII tribunal. On April 30, 1998, U.S. Ambassador Nancy Soderberg tabled a draft resolution at the UN Security Council calling for the establishment of an ad hoc international criminal tribunal to prosecute the Khmer Rouge. The other four Permanent Five council members were taken by surprise and did not welcome the proposal.70 The Chinese went ballistic upon seeing this issue raised in the Security Council and immediately delivered a demarche to Hun Sen, denouncing the idea that an international Khmer Rouge tribunal should ever be convened. Hun Sen had been cooperating closely with the Americans in the attempt to create an international tribunal, but China’s strong objections persuaded him to reconsider his approach. Six days later, Prime Minister Hun Sen met in Bangkok with Thai Prime Minister Chuan Leekpai and asked him to help defuse the situation. The Khmer Rouge “trial remains a hot issue and a political one,” he confidentially informed his Thai counterpart. Hun Sen went on to tell Leekpai that he was concerned that this matter might divert attention away from the coming election. The International Tribunal looks very complicated, it could become an issue of conflict between the super-powers, since China continues to oppose the idea. Therefore if Ta Mok, Nuon Chea and Khieu Samphan could disappear, it would be better. The USA wants them, but I feel that those three leaders will never give themselves up under any condition. If they can find refuge somewhere that no one can find them, it would be the best solution.71

The Thai leader declined to accommodate the Cambodian request, but if Hun Sen’s repeated appeals to the Thai government for assistance in making the Khmer Rouge leadership “disappear” are any indication, Hun Sen had come to the conclusion that a Khmer Rouge tribunal was simply too hot to handle at this point in time. THE EXPERTS

Even as Hun Sen was expressing these doubts about the political wisdom of continuing the search for genocide justice, ironically, the United Nations was on the verge of returning to the issue with renewed determination. UN

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Secretary-General Kofi Annan had been quietly preparing to implement the UN General Assembly’s request from the previous December to respond to Cambodia’s call for assistance in organizing a Khmer Rouge tribunal. On July 26, 1998, a national election was held in Cambodia, presaging the beginning of the end of Cambodia’s year-long political crisis. The CPP claimed victory, and notwithstanding a spasm of postelection protests over the outcome, the royalists eventually agreed to join the CPP in forming a second coalition government, this time with Hun Sen as the sole prime minister. The election provided the necessary signal to the UN of renewed political legitimacy and stability in Phnom Penh. On July 13, Annan had appointed a three-member Group of Experts who were charged with the task of evaluating the evidence of crimes during the Khmer Rouge regime and recommending whether it was feasible to bring Khmer Rouge leaders to justice for those crimes. This decision was announced on August 7, less than two weeks after the Cambodian election.72 Three and a half months later, on November 14, 1998, Sir Ninian Stephen of Australia, Mr. Rajsoomer Lallah of Mauritius, and Professor Steven Ratner of the United States arrived in Cambodia to carry out their investigation as the UN Group of Experts. In one sense, deploying the Group of Experts was a formality in the process of establishing a UN-sponsored criminal tribunal, but the three nonetheless had some serious work ahead of them. The arrival of the UN Group of Experts caused a sensation in Phnom Penh. Genocide justice, long hoped for, delayed, and seemingly impossible, now appeared to be within reach as the international community delivered a concrete expression of its willingness to assist the country in dealing with this difficult problem. At a crowded press conference on November 17, the three experts took questions from the domestic and international media, and the Cambodian reporters present could barely suppress their glee. Justice Lallah told the press conference, “It is very important in the field of human rights that rulers whether past, present or future, should be very much aware that there is no culture of impunity which humanity will accept. . . . This is an effort of humanity to face the problem and find the solution.”73 This kind of rhetoric electrified the capital, and Phnom Penh’s newspapers were filled with little else during the entire UN mission. The experts consulted with Cambodian political leaders, the Phnom Penh diplomatic corps, the staff of the UN Center for Human Rights, and domestic human rights groups. They took a field trip to the site of a Khmer

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Rouge extermination center in western Kandal province and were appalled at the sight of a pile of several thousand human skulls at a genocide memorial.74 The three legal experts also made several visits to the Documentation Center of Cambodia, where they reviewed evidentiary materials assembled by the center, evaluated the extent to which the evidence might support charges against particular suspects, and consulted with the Documentation Center’s director on how to improve its methods of collection and analysis.75 In toto, over the course of their mission, the Group of Experts saw everything they needed to see to find a prima facie case that war crimes, genocide, and other crimes against humanity had been committed under the Khmer Rouge regime, and to determine that an international tribunal to prosecute these crimes was both feasible and warranted. On November 25, the experts departed from Bangkok to begin the process of preparing their report for the UN Secretary-General. Once again, it appeared that the momentum for genocide justice in Cambodia was unstoppable. But once again, that impression would prove to be fleeting. Several months earlier, five senior Khmer Rouge intellectuals had defected to the government. Thiounn Thioeunn, Chan Youran, Mak Ben, In Sopheap, and Kor Bun Heng—the intellectual core of the Khmer Rouge political operation—left Ta Mok’s stronghold at Anlong Veng in northern Cambodia and moved to Ieng Sary’s western enclave in Battambang province. Hun Sen met with the group on June 20, and the next day, the new defectors called a press conference where Chan Youran told reporters, “We think Khieu Samphan is a moderate leader,” adding a denial that his group was involved in any attempt to negotiate the surrender of the Khmer Rouge figurehead.76 On September 11, the five were joined in Battambang by Tep Khunnal and Khan Soeurn, two of the last intellectuals remaining with the Khmer Rouge, along with Pol Pot’s widow, his child, and his nephew.77 The Cambodian government was anticipating some additional defections as well. Even while the UN Group of Experts had been in Cambodia examining the possibilities for a tribunal and conferring with top officials of the Royal Government, officers of the government’s Royal Armed Forces were in Preah Vihear on the Thai border, negotiating a peace deal with a group of top Khmer Rouge military leaders. On December 4, eight Khmer Rouge military commanders agreed to bring their 5,000 troops over to the government side.78 This large-scale defection represented the final major block

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of Khmer Rouge troops still in resistance. All that remained of the oncefearsome Khmer Rouge political and military machine now were Ta Mok, Nuon Chea, Khieu Samphan, and a handful of bodyguards. Exactly one month after the UN Group of Experts departed to begin drafting their recommendations, the last two remaining senior Khmer Rouge political leaders, Nuon Chea and Khieu Samphan, surrendered to Hun Sen. This signal event marked the final collapse of the Khmer Rouge political organization, and it occurred almost twenty years to the day after the launch of the Vietnamese invasion that had driven the Khmer Rouge from power. Hun Sen had already anticipated the conclusions of the UN Group of Experts, and told reporters on December 3 that an international tribunal for the Khmer Rouge was “impossible.”79 Moreover, with the final collapse of the Khmer Rouge as a political entity, Hun Sen began to contemplate the possibility that any tribunal at all was unnecessary. He had achieved his objective—the political death of the Khmer Rouge—and so the tribunal could now be seen as an idea whose time had passed. BURYING THE PAST

With the collapse of the Khmer Rouge political organization in the final days of 1998, a dizzying sequence of signals issued from Phnom Penh as Hun Sen scrambled to define a new strategy. Khieu Samphan and Nuon Chea consummated their surrender on December 25. On December 28, Hun Sen emerged from a cabinet meeting in Phnom Penh and told assembled reporters that the deal had been done, and it was no longer appropriate to speak of a Khmer Rouge tribunal: If we bring them to trial, it will not benefit the nation, it will only mean a return to civil war. . . . We should dig a hole and bury the past and look toward the future. This is a pure Cambodian solution. We know the right medicine to use to cure this problem. If any foreigners try to add something, it will never go away. If the wound no longer hurts, we shouldn’t poke a stick in it and make it bleed. Should we kill Khieu Samphan or welcome him for national reconciliation? This deal is a bouquet of flowers for this pair, not a bullet or a pair of handcuffs.80

But it would turn out that the wound still hurt quite a lot, and Hun Sen himself had just poked it with a stick. Though Hun Sen’s cabinet may have

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accepted his magnanimous approach to the two defeated Khmer Rouge leaders, the rank and file of the Cambodian People’s Party exploded in a firestorm of protest. Many members were outraged that their long-standing commitment to bring the Khmer Rouge leadership to justice suddenly appeared to have been jettisoned, at the very moment when it was finally possible to realize the cherished goal. Three days later, Hun Sen was forced to publicly “clarify” his comments. The prime minister issued a long and angry statement, which he began by saying, Over the past few days after the defection of Khieu Samphan, Nuon Chea, former top leaders of the Khmer Rouge to the fold of the nation, there happens a variety of mixed reaction, on one side, the joy and peace resulting from the fact that they ceased to wage war against the Royal Government of Cambodia (RGC), and on the other, the dissatisfaction over the impunity of the Khmer Rouge leaders who have been responsible for the death of millions of Cambodians while they were in power from 1975 to 1979. Faced with the reactions’ implication that I have changed my position to the problem of trial of the Khmer Rouge leaders, I wish to clarify. . . . My position is that the trial of the Khmer Rouge is a fait accompli and to be proceeded. A fait accompli, I mean that the verdict of the People’s Court in 1979 is still valid, and recognized by the royal decree which provided amnesty for Ieng Sary in 1996. To be proceeded, I mean a court that is to be set up at the recommendation of the national and foreign jurists who are actually doing the job. . . . I have provided no guarantee to any particular persons to be free from charges of the court. . . . If we were to arrest them . . . it is a warning signal to other soldiers not to defect to the Government anymore because we have not kept to our promise—a promise that we made without violating the power of the court, but in its respect.81

Hun Sen’s statement of clarification, however, did not include an actual commitment to seek prosecution of Khieu Samphan or Nuon Chea, or any other particular Khmer Rouge leader. Instead, he spoke vaguely of “a court to be set up,” while reiterating the wisdom of not attempting the arrest of any Khmer Rouge leaders out of concern that it might discourage “other soldiers” from defecting to the government. There was only one problem with this formulation: at this point in the game, the only Khmer Rouge soldiers who had yet to defect to the government were the small group of troops still loyal to Ta Mok—the last remaining senior Khmer Rouge

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holdout—somewhere along the Thai-Cambodian border. Those soldiers had the example of the generous treatment the government had extended to their thousands of comrades-in-arms who had already defected, and they too would soon go over to the government. Meanwhile, Foreign Minister Hor Nam Hong had been instructed to contact officials of South Africa’s Truth and Reconciliation Commission (TRC) to inquire about possible assistance to Cambodia in establishing a truth commission as an alternative to criminal prosecutions. On January 16, Hun Sen told reporters, “We are looking at the South African example of the Truth and Reconciliation Commission . . . where they have the end of apartheid and a level of justice and peace. We are deciding if we should invite Archbishop Desmond Tutu to Cambodia or if we should send a delegation to meet him.”82 Dumisa Ntsebeza of the TRC responded almost immediately to Hun Sen’s suggestion, telling reporters in Johannesburg, “I can say without fear of contradiction that the archbishop does not support the idea of the International Criminal Court as the only solution to such situations.”83 A TRC spokesperson was quick to add that although they would welcome any request for assistance, the TRC had not yet been officially contacted by the Cambodians. On January 21, Hun Sen floated a new gambit. He gave a letter to SRSG Hammarberg to deliver to the UN Secretary-General, demanding that any Khmer Rouge tribunal be broadened in scope to examine alleged crimes by China and the United States between 1970 and 1998. His aim, evidently, was to appear even-handed toward the region’s superpowers while attempting to intimidate the United States with the threat of revisiting the tragic U.S. relationship to Cambodia. Hammarberg rejected Hun Sen’s new idea, publicly and summarily, immediately after emerging from his meeting with Hun Sen. “The trial organized with U.N. participation of some kind will be for crimes committed by Khmer Rouge leaders from 1975 to 1979,” Hammarberg told reporters. “That’s it.”84 Hun Sen’s efforts to derail the tribunal process were beginning to take on an air of desperation; after having worried to his Thai counterpart eighteen months earlier that the Khmer Rouge tribunal “could become an issue of conflict between the superpowers,” he now appeared to be actively attempting to stoke that conflict. In Kuala Lumpur on February 5, on the eve of a state visit to China, Hun Sen lashed out at the idea of a Khmer Rouge tribunal. “We should not push for any action which would lead to more killing of the Cambodian people.

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If the court of law for such a trial is to be made and if it is the mandate of the United Nations Security Council, then if the war erupts, it is the Security Council that must be responsible.”85 He added later that he still supported the formation of a tribunal for the Khmer Rouge leaders, but repeated the assertions he had been making for the previous several weeks that any tribunal should also investigate crimes against the Cambodian people committed by other countries prior to and after the Khmer Rouge regime, a clear reference not only to the United States but also to Chinese support for the Khmer Rouge during the 1980s. The next day, Chinese Foreign Minister Tang Jiaxuan said China considered that the notion of using its veto in the UN Security Council to block any Khmer Rouge tribunal was a “constructive proposal.”86 On February 22, the Report of the UN Group of Experts was delivered to UN Secretary-General Kofi Annan, and the same day, a copy was passed along to the Cambodian government. The report recommended the establishment of an international criminal tribunal for the Khmer Rouge modeled on the ad hoc tribunals for Yugoslavia and Rwanda. The offenses that the Group of Experts suggested should be prosecuted included crimes against humanity and genocide: We recommend that, in response to the 21 June 1997 request of the government of Cambodia, the United Nations establish an ad hoc international tribunal to try Khmer Rouge officials for crimes against humanity and genocide committed from 17 April 1975 to 7 January 1979. . . . If these and our other recommendations are pursued by the United Nations now with the support of the government of Cambodia, we believe they will lead to a process that will truly enable Cambodia to move away from its incalculably tragic past and create a genuine form of national reconciliation for the future.87

It did not take Hun Sen long to react. On February 24, he told reporters, “I want to keep peace and political stability. We can’t take (and prosecute) the former president of the national assembly . . . and the former prime minister who surrendered (and put them on trial).”88 Though the premier was publicly expressing objections to the idea of a trial, the Royal Government appeared to be scrambling over the question of how to officially respond to the recommendations in the report. On his return from a foreign trip on February 28, Hun Sen had said he had been “too busy” to read

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it.89 A full week after the anxiously awaited report had been sent to the government, Om Yien Tieng, one of Hun Sen’s senior political advisors, was still denying all knowledge of it: “We have no knowledge of the report and I don’t know if he has received it,” he said of his boss.90 But even if he had not yet received the UN’s recommendations, Hun Sen was apparently not too busy to think about the topic. The next day, on March 3, he officially informed the United Nations that Cambodia was considering a truth commission as an alternative to the recommendations contained in the report.91 By this juncture, Foreign Minister Hor Nam Hong had gotten around to contacting Archbishop Desmond Tutu, seeking advice about how Cambodia might establish a truth commission. But as the foreign minister prepared to travel to New York to meet Kofi Annan, where he would formally reject the recommendations of the UN Group of Experts, Cambodia’s increasingly wobbly commitment to retributive justice for the Khmer Rouge was about to experience another lurch. On March 6, the last remaining Khmer Rouge leader still out in the cold was captured in a sting operation at the Thai border. Ta Mok had been taken into custody. For the first time in the history of the entire saga of seeking accountability for the crimes of the Khmer Rouge, a senior Khmer Rouge leader had been jailed by the government. This development suddenly changed everything. The recently conceived idea of a truth commission was abandoned as quickly as it had been snatched up to begin with. At last, the government had what it considered a viable way to respond to the demands of the international community and its own people for genocide justice. Mok would take the fall for the Cambodian genocide. “WE HAVE NO LAW ON GENOCIDE”

Hun Sen and other senior Cambodian officials had been insisting for months that they had no grounds to arrest Nuon Chea and Khieu Samphan, because “the court” had issued no arrest warrant for them. For some reason, however, the court took a more proactive stance in the case of Ta Mok. A criminal case was filed against Mok on March 6, the same day he was taken into custody, and within three days, he had been indicted for violations of the Law on the Outlawing of the Democratic Kampuchea Group.92 Nuon Chea and Khieu Samphan had been in violation of the same provisions

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of the same law for four and a half years, from July  15, 1994, through December 25, 1998. Ta Mok had violated that law for exactly seventy-one days longer than they, but evidently those seventy-one days made all the difference in the world. Six days after Mok’s detention, March 12, 1999, Cambodia’s foreign minister met with Secretary-General Kofi Annan and informed him that Cambodia had decided to reject the recommendations of the UN Group of Experts. Instead of the Hague-style tribunal suggested in the report, Cambodia intended to try Ta Mok alone in a Cambodian court for the crimes of the Khmer Rouge regime. As for the remainder of the top echelon of Khmer Rouge leaders, Hor Nam Hong told Annan, the Royal Government intended to “leave the rest of them alone.”93 Annan vigorously objected to this plan, but the foreign minister was firm. Later that day, he met with Ambassador David Scheffer. “He pressed me very strongly to accept an international tribunal,” Nam Hong recalled.94 But the Cambodians had one additional card to play. They requested assistance from the UN and the United States to set up a Cambodian trial for Mok. Three days after the meeting at the UN, the secretary-general forwarded the Report of the Group of Experts to the General Assembly and Security Council with his own analysis attached. Annan reported on his meeting with Hong, “The Foreign Minister therefore informed me of his Government’s decision to put on trial Ta Mok, the former Khmer Rouge military commander of the south-west region and a member of the Standing Committee, before a Cambodian court under Cambodian law, and to accept foreign assistance and expertise to that end.”95 Annan went on to point out to the assembly and the council that the experts had concluded that Cambodia’s judiciary was unlikely to meet international standards of justice in undertaking such an exercise. Moreover, he wrote, It is my view, however, that the trial of a single Khmer Rouge military leader which would leave the entire political leadership unpunished would not serve the cause of the justice and accountability. It is, therefore, my view that Khmer Rouge leaders responsible for the most serious of crimes should be brought to justice and tried before a tribunal which meets the international standards of justice, fairness and due process of law. Impunity is unacceptable in the face of genocide and other crimes against humanity.96

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On March 25, Hun Sen wrote to Kofi Annan to reiterate his government’s position. The prime minister asserted again that any trial of Mok would take place in Cambodia’s national courts, but, he said, “To ensure that the foresaid trial by the existing national tribunal of Cambodia meets the international standards, the Royal Government of Cambodia welcomes the assistance in terms of legal experts from foreign countries. It is, however, up to the tribunal to determine the number of these legal experts. The Royal Government of Cambodia does not have any power to impose anything on the competent tribunal.”97 On the face of it, this was a peculiar position. How could Cambodia’s existing judicial system incorporate foreign legal experts without new legal provisions being adopted by Cambodia’s legislature? Moreover, all significant legislation in Cambodia originates with the executive. These facts made the next section of Hun Sen’s letter even more peculiar: “The issue of whether to try Ta Mok alone or any other Khmer Rouge leaders depends entirely on the competence of the tribunal. The Royal Government of Cambodia will not exert any influence on or interfere, in any form, into the normal proceedings of the judiciary that will enjoy complete independence from the executive and legislative powers.”98 The assertion that a genocide tribunal for a Khmer Rouge leader—the most sensitive issue in the entire sphere of Cambodian politics, and one to which Cambodia’s executive had devoted enormous exertions, arguing for years that it involved the most crucial national issues of war, peace, and reconciliation—could in any way be a “normal proceeding” was simply incredible. Under Cambodian law, prosecutors answer to the executive. Much of the international community responded to Cambodia’s position on the Khmer Rouge tribunal with unalloyed outrage. The European Parliament adopted a resolution on April 15 saying that it “condemns all attempts by the Cambodian government to prevent the constitution of an international ad hoc tribunal by the UN.”99 Japan introduced a resolution at the UN Human Rights Commission on April 21, calling for Cambodia to accept an international tribunal, but Cambodia managed to get the measure watered down prior to its passage.100 Britain delivered a demarche to the Cambodian government on April 23, demanding that Cambodia accept an international tribunal.101 The international pressure, combined with continuing pressure on Hun Sen from within his own political party, began to take its toll on the prime minister.

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While the rest of the world focused its ire on Cambodian officials, one particular U.S. official was focused on finding a way to thread the needle. Senator John Kerry had appeared in Phnom Penh on April 7, lobbying Hun Sen to reconsider his decision to try only Mok, and try him in a purely Cambodian court.102 Kerry was freelancing, because the U.S. government was still pushing for a Chapter VII tribunal mandated by the UN Security Council.103 Kerry was a decorated veteran of combat in Vietnam who returned to the United States to become a leader of Vietnam Veterans Against the War, an antiwar group. He was later elected by Massachusetts to the U.S. Senate. This personal history somehow gave Kerry an intimate connection with Hun Sen, and he would become a key interlocutor at several junctures in the tribunal negotiations. Kerry proposed to Hun Sen that since he was willing to allow foreigners to participate in the Cambodian courts, perhaps he could convene a special “mixed” national-international tribunal in Cambodia to accomplish this purpose. Hun Sen listened attentively but did not commit himself to Kerry’s idea. By three weeks later, however, he began to move toward the Kerry proposal when on April 28 he wrote to Secretary-General Annan to announce that international jurists would be permitted to participate in Ta Mok’s trial. On that very same day, however, another wild card was thrown onto the table. An Irish journalist working in western Cambodia happened to run into a man employed by an American Christian charity organization and thought he recognized him as Kaing Guek Eav, alias Duch, the notorious Khmer Rouge secret police chief.104 And indeed it was him. The news was soon telegraphed worldwide, and at first, the Cambodian government was flummoxed. In view of the fact that Duch was officially vilified at the Tuol Sleng Museum of Genocide, they soon concluded that they had no choice but to arrest him. Duch was jailed on May 9, and the next day he was indicted by the military prosecutor on charges of violating the Law on the Outlawing of the Democratic Kampuchea Group.105 The very next day, however, military officials expressed doubts about their own indictment. Duch had left the Khmer Rouge prior to the promulgation of the antiKhmer Rouge law, so there was some question as to whether its provisions applied to him. As the military prosecutor put it, “It’s very complicated. . . . We have no law on genocide.”106

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FIGURE 2.1 . UN expert Rajsoomer Lallah at killing field, 1998

Twenty years of often lonely and futile efforts to plant and nurture the seeds of genocide justice in Cambodia had finally begun to bear fruit. The United States, the United Nations, and the Cambodian government itself were all suddenly talking about the possibilities for bringing Khmer Rouge leaders to justice. All three of these key players, however, had very different ideas about how to achieve this goal. The United Nations would approach the task tightly wedded to the ideology of classical legalism. In stark contrast, the Cambodian government would remain in its accustomed mode of instrumental legalism, in which the political results of any such trials would be all important. Meanwhile, the United States would operate between those two perspectives, wielding strategic legalism in an effort to bridge the yawning gap. It would take many more years of contentious negotiations to achieve an agreement acceptable to all concerned, and more years yet to determine if the ultimate outcome would end up being more than the victor’s justice dispensed by the People’s Revolutionary Tribunal in 1979.

Chapter Three

NEGOTIATING JUSTICE

In 1999, the UN and Cambodia launched negotiations to devise a legal process to hold Khmer Rouge leaders accountable for atrocities perpetrated between 1975 and 1979. Over the subsequent two years, both parties would come to accept the concept of a “mixed” tribunal on which both Cambodian and foreign jurists would sit. The devil, however, was not just in the details but in pages upon pages of details. And the UN and Cambodia would never find themselves quite on the same page at the same time. The UN repeatedly dispatched high-level negotiating teams to Cambodia in attempts to ensure that the tribunal would embody what they called “international standards,” while the Cambodians insisted that any tribunal must respect Cambodian “sovereignty.” U.S. diplomats struggled throughout to keep the process moving forward, cajoling both parties to offer concessions. The ensuing brawl would eventually yield a Cambodian tribunal law, but one about which the UN had grave reservations. THE UN OFFICE OF LEGAL AFFAIRS STEPS UP

With two senior Khmer Rouge suspects—Mok and Duch—in custody by early May 1999, the prospect of accountability for the Khmer Rouge was again given a new lease on life. But what position the Cambodian government might take at any given time remained unclear, as Hun Sen had floated

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multiple mutually incompatible proposals in quick succession over the previous several months. The clarity and unity of purpose among leading member states of the UN were hardly better than what was coming out of Cambodia. The United States remained committed to the concept of a Chapter VII tribunal, which would have to be authorized by the UN Security Council. The British had taken a liking to the proposal for a treaty-based court, first mooted by U.S. Secretary of State Albright in June 1997.1 The French were holding fast to the position that any Khmer Rouge trials should be handled in Cambodia by the Cambodians. The People’s Republic of China was scheming to find some way to make the entire issue disappear. On May 5, U.S. Ambassador Scheffer canvassed UN missions in New York and found that numerous delegations were discussing the idea of a “mixed” tribunal, but he found no support for the U.S. position of a Security Councilmandated court.2 On May 18, 1999, UN Special Representative for Human Rights in Cambodia Thomas Hammarberg met Hun Sen in Phnom Penh to discuss the possibilities for continued cooperation between Cambodia and the UN on the matter of a tribunal. Hun Sen proposed to Hammarberg that the UN provide assistance in drafting legislation to govern what Hun Sen called a “national proceeding with international characteristics,” and what Hammarberg called a “mixed” national-international tribunal.3 But Hun Sen was not waiting for UN assistance to materialize; two days earlier, a French law professor named Claude Gour had been dispatched by the French government to assist the Cambodians in drafting a domestic tribunal law. One of Gour’s first assignments was to figure out how to incorporate the Genocide Convention into Cambodian law. It was becoming an international embarrassment to have genocide suspects in custody, but no law against genocide with which to charge them. A week after his session with Hun Sen, Hammarberg met with David Scheffer to brief him on his Cambodia trip. With numerous countries now mulling the concept of a mixed tribunal and Cambodia apparently backing it as well, it was becoming clear to Scheffer that momentum was moving away from the U.S. government’s insistence on a Chapter VII tribunal and toward Senator Kerry’s proposal. Yet Scheffer was still determined to give any Khmer Rouge tribunal the legitimacy and authority that would come with a Security Council mandate, so he attempted to explore with Hammarberg

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how a mixed tribunal might be shoehorned into the framework of a UN Security Council-mandated court.4 But reality was about to come crashing down. On June 30, 1999, Russia and China formally informed the United States that they were unalterably opposed to a UN Security Council role in any Khmer Rouge tribunal. Bowing to this reality, Scheffer turned on a dime and immediately began to explore mixed tribunal concepts. At this point in the drama, the UN Office of Legal Affairs (OLA) swept onto the stage in a leading role. In a display of considerable flexibility and creativity, the UN Secretariat had decided to elaborate an entirely new model of international justice, the so-called “mixed” concept of nationalinternational justice. OLA lawyers had spent a frenzied two months analyzing the situation and putting together the outlines of a proposal for a tribunal that would be based in Cambodia but would embody the UN’s vision of international standards of jurisprudence. On July 8, Ambassador Hammarberg released a statement revealing that the UN was preparing to present a proposal to the Cambodian government, and saying that he hoped a delegation from New York could travel to Cambodia by the end of July or the beginning of August.5 Ten days later, Assistant Secretary-General for Legal Affairs Ralph Zacklin briefed the secretary-general on OLA’s concept for the mixed tribunal.6 In his briefing, Assistant Secretary-General Zacklin correctly noted that the Cambodian government had only requested assistance in drafting national legislation that would meet international standards of justice. Instead of responding directly to that request, however, Zacklin told SecretaryGeneral Annan that OLA had prepared a rather more ambitious proposal. While the model of a mixed tribunal elaborated in this paper goes beyond the relatively limited request for legal-technical assistance, it is premised on the understanding that what underlies the Cambodian request is an attempt to obtain UNinternational legitimacy. If so, we propose that the UN condition its willingness to assist in establishing the tribunal for prosecuting Khmer-Rouge leaders on: viable guarantees that Khmer-Rouge leaders, other than Ta Mok, who are situated in Cambodia would be arrested and surrendered to the Tribunal; an independent Prosecutor; a mixed composition of Cambodian and foreign judges in which the non-Cambodians would not be out-voted; and the inclusion of the crime of genocide and other crimes against humanity in the applicable law.7

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Zacklin’s premise that the Cambodian government sought international legitimacy for the Khmer Rouge Tribunal was certainly correct. But the extent to which the UN would prove able to impose all of its conditions on the Cambodians would turn out to be another matter altogether. Zacklin’s briefing paper outlined the legal basis of the tribunal, the applicable law, temporal and personal jurisdiction, a proposed structure for the special court (a registry, a prosecutor, and a single chamber), and other aspects of the mixed tribunal. OLA also proposed that the prosecutor adopt a “Nuremberg-type” strategy, that is, a joint trial of all major Khmer Rouge military and political leaders. The single chamber meant that there was no provision for appeal of judgments in the event of errors of fact or law, a curious lapse in view of OLA’s insistence on “international standards of justice.”8 The briefing paper also specified that it should not be possible for non-Cambodian judges on the tribunal to be outvoted, which meant a majority of foreign judges. But the Cambodians had merely requested UN assistance in drafting legislation to establish a “national” tribunal, so the concept of a foreign majority on the court would not go down well with the Royal Government. After the secretary-general’s briefing, OLA prepared to roll out the tribunal concept to the other interested states. On July 29, Zacklin briefed Cambodia’s Ambassador to the United Nations, Ouch Borith, who quickly communicated the substance of the briefing to his superiors.9 The next day, July 30, 1999, Zacklin provided a similar briefing to the UN Security Council.10 In the course of the briefing, the representatives of Russia and China objected to the tribunal issue even being discussed in the council chambers.11 Zacklin responded to the objections by saying that the secretarygeneral was not seeking a Security Council endorsement of the process but was simply responding to the request from Cambodia for assistance and keeping the Security Council informed. Zacklin viewed the Security Council briefing as a formality, but the two key member states did not see it that way. The responses to Zacklin’s mixed tribunal briefings presaged a long and bitter struggle. The Chinese had reacted badly when the United States tabled a draft resolution for a Khmer Rouge tribunal at the Security Council in April of the previous year. Both the Russians and the Chinese believed that they had banished the topic from the Security Council with their demarche to the United States one month before, but once again the Khmer Rouge

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tribunal was rearing its ugly head. The Chinese, in particular, would not remain silent in the face of this challenge. The initial reaction from Cambodia was relatively mild. The Royal Government replied on August 12 that it intended to establish the tribunal as a domestic organ of the state, and reiterated its request for assistance in drafting appropriate legislation. After getting negative feedback on the Security Council briefing from the Chinese, however, Hun Sen publicly scolded the UN Secretariat. “I did not request that the trial of the KR be internationalized. I did not request that this question be submitted to the UNSC,” he insisted. Of course, over the years, the premier had repeatedly demanded an internationalized trial, both in public and in confidential communiqués to various UN member states, particularly the United States. But his May 18 request to the UN specified only technical assistance in drafting domestic legislation. Not content with noting that objection, Hun Sen went on to firmly reject a key element of the UN proposal, foreign judges in the majority in the court. “It’s tantamount to a violation of the sovereignty of an independent country, which is also a member of the United Nations,” he said. “We cannot accept this kind of proposal, we will not discuss such a proposal, and we will be indifferent to such a proposal.”12 The prime minister had laid down his markers. The stage was set for the first visit to Cambodia by a delegation from the UN Office of Legal Affairs, whose mission would be to negotiate an internationalized tribunal. THE NEGOTIATIONS BEGIN

On August 20, the Royal Government formally appointed a group of senior officials to address the tribunal issue. Minister of the Council of Ministers Sok An, one of Hun Sen’s most capable and trusted aides, was named to chair the “Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders.”13 Sok An had trained as a civil servant during the Lon Nol regime, somehow managed to survive the Khmer Rouge regime before becoming a protégée of Hun Sen, then rose alongside his boss. A week later, the Task Force received a UN working group led by Assistant Secretary Zacklin at the Council of Ministers in Phnom Penh. The first session yielded little of substance, but both sides staked out initial negotiating positions, to which both would hold throughout virtually the entire process. Secretary Zacklin began

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by outlining the objectives the UN hoped to achieve. Zacklin told Sok An and his Task Force that the UN had come “in the spirit of attempting to reach agreement” on the modalities of establishing a special tribunal under Cambodian law.14 It would be a “so-called ‘mixed’ tribunal” with Cambodian and international elements. The tribunal would have to meet international standards of justice, fairness and due process, and we believe this is shared by both Cambodia and the international community. In order to meet UN requirements; and to satisfy donor countries; and to establish legitimacy in the eyes of the international community, it would be necessary to reach agreement on a number of basic elements, including: applicable law; temporal and personal jurisdiction; structure and composition; and the ability of the Cambodian government to meet the court’s [decisions], especially indictments.15

The Task Force had completed a draft tribunal law in French, and this document was presented to the UN team.16 “We see that the Cambodian side has prepared a draft law,” Zacklin noted. “The UN side also has one.”17 In addition to reaching agreement on a law to establish the tribunal, he continued, the negotiating process would also have to produce a formal agreement between the Cambodian government and the UN on “principles of cooperation.” Sok An replied to Zacklin’s opening presentation by suggesting that they go straight to a discussion of the applicable law contained in the Cambodian draft. “It would be good for our discussions to focus on brushing up this draft to be in full conformity with international standards,” he suggested. But before proceeding to such a discussion, Sok An presented Zacklin with his expectations for the meetings. “Frankly speaking,” he said, “we expect two main contributions from the mission: 1) to assist us to establish the law in full conformity with international standards; and 2) to fully respect the independence and sovereignty of the Cambodian courts.”18 The first “contribution” was exactly what Zacklin wanted to hear; the second would trouble the negotiations to the bitter end. “We have handed over our draft,” Sok An continued, “and now we await your advice. In handing over our draft, I wish to make the following comments: that our aim is to implement the international conventions and also to enlarge the existing court to include foreign judges and lawyers.”19

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Zacklin was not prepared to go into the details during the initial session. “It will be useful for us to study your text, and to provide detailed comments and our own text. I prefer not to share this with you this morning, because I think it is better to look for areas of commonality first.”20 Having briefly scanned the draft Cambodian text, however, he took a moment to flag several issues he believed would need to be addressed in the negotiations. In terms of the applicable law, Zacklin noted that it was important for the UN to “ensure that genocide and crimes against humanity are properly reflected in any Cambodian law.”21 He also observed that the tribunal structure in the Cambodian draft reflected the existing Cambodian system, while the UN draft proposed establishing a “special, ad hoc tribunal.” Moreover, while the Cambodian side envisioned a majority on the court being Cambodian nationals, the UN preferred that the majority should be international personnel. There would also be issues of procedure. In earlier remarks, Sok An had noted that he believed there would not be any problem with the decisions of the court being enforced, as this was the duty of Cambodia’s judicial police. But Zacklin rejoined that there was more to this than simple police work. “The question I have raised is not so much a legal as a political question. There is a need for a mechanism that would assure the donor countries that the needs of the trial process can be effectively met, and this process must be seen to be effective before donors can make a substantial commitment.”22 At this juncture, the two sides agreed to call a halt to the proceedings and reconvene two days hence. Zacklin told Sok An that the UN team would revise the initial UN draft law in light of the Cambodian draft and supply it to the Task Force the next day, giving them time to study it prior to the next session. Sok An objected to this: “We feel we need to work on a single text, rather than to have two working documents, which may lead to confusion.”23 Zacklin assured Sok An that the UN draft would clearly indicate areas of commonality and difference, implying that the Cambodian side need not be concerned. But this seemingly insignificant procedural detail would indeed lead to confusion throughout the entire negotiating process— confusion that would mostly be manifested in the understandings of the United Nations. The next day, as promised, the UN team delivered a set of documents to the Task Force, including the UN’s proposed draft law and comments

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on the Cambodian draft tribunal law.24 In discussing the Cambodian draft, Zacklin began by contrasting the different approaches taken by the two sides: “The Cambodian draft law is essentially in the nature of an implementing legislation; the UN draft is a law on the establishment of an independent tribunal of specific temporal, territorial, personal and subjectmatter jurisdiction.”25 His memorandum went on to point out a number of issues regarding applicable law, procedure, penalties, and several additional provisions. But the UN team saw that the main difference between the two drafts was in the very basic question of whether the tribunal would be a simple extension of the Cambodian court system, as in the Cambodian version, or a special organ created for a special purpose: The fundamental divergence between the Cambodian and the UN draft laws lies in the conceptual difference as to the very nature of the Mixed Tribunal. If the trial of Khmer Rouge leaders is to meet international standards of justice, fairness and due process of law, and gain the support and legitimacy of the international community, it is vital that it be seen to be effective on the international as well as the national plane. This cannot be achieved by merely adding a number of foreign judges to the composition of the existing court system. Only a special sui-generis tribunal, separate from the existing court system, in which Cambodians and nonCambodians would serve as judges, prosecutors, investigators and registry staff accomplish this. The UN draft law which is attached meets the international standards of fairness, justice and due process of law and would provide a basis for a mixed tribunal which we believe will attract the support of the international community.26

To this brief commentary, Zacklin attached a UN draft law consisting of twenty-three chapters.27 The draft was a realization of the mixed tribunal concept introduced at the Secretariat the previous month. Zacklin evidently hoped that the Cambodian side would abandon their draft and henceforth work from the UN draft. That would not happen. The next morning, the two teams met again at the Council of Ministers. Both sides were prepared to engage with the details, and they plunged directly into one of the most contentious issues: retroactivity. The Cambodian draft law contained a novel definition of genocide, crafted to precisely reflect what had happened under the Khmer Rouge regime. Zacklin objected to this on the grounds that not only did this definition fail to conform to

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the standard in the Genocide Convention, but introducing a new definition would also constitute a retroactive application of law, and this violated international standards of justice.28 Sok An argued that Cambodia’s situation was unique and the standard definition of genocide would not capture the nature of what the Khmer Rouge had done. Zacklin countered that any crimes not captured under genocide would fall under the ambit of crimes against humanity. Sok An replied that in his understanding, finding crimes against humanity required the existence of a state of war, and there was some question as to whether there had been a state of war between 1975 and 1979. Zacklin countered that based on recent jurisprudence, he was confident that this so-called “war nexus” requirement no longer existed, and thus this was not a problem. And so the discussion went; it was serious, substantive, and informed. After nearly two hours of debating the applicable law, Sok An moved to change the subject to what would become the issue of greatest disagreement between the two sides: the structure of the tribunal. The Task Force chairman indicated the Cambodian side’s concern that a special tribunal might infringe on Cambodian sovereignty, but Zacklin pointed out that since the tribunal would be created by Cambodian national legislation and carried out under Cambodian law, there would be no conflict with Cambodia’s sovereignty. As to the question of who would hold a majority on the court, Zacklin argued, there needed to be a “substantial” international component in order to assure UN member states that the proceedings would be conducted to the highest standards. “It is a question of legitimacy, not of numbers,”29 he insisted. Sok An thought he detected flexibility and replied, “Can I understand then that you will not be tough on the number of judges?”30 But he was mistaken. Zacklin firmly rebuffed the impression that the UN was prepared to concede on the majority question. “I can say, on behalf of the Secretary-General, that I will continue to be tough on this and other issues.”31 The morning’s productivity had come to an end. Both sides expressed the hope that their differences could be narrowed in further talks. “So,” Sok An concluded, we have exchanged views on very important points. . . . I propose that we now need to study your draft and digest these important points. These two rounds of discussion give a very good basis to understand your draft, and we are sure we can

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take some positive points from your draft. We will then be in a position to set up a second draft . . . which we hope will lead to a common draft and then we can proceed with our common task.32

“We did not come here in the expectation of finalising a text, as our starting points have been very different, but we expected to have serious discussions, and we have had these,” replied Zacklin.33 Sok An concluded the meeting by noting that a high-level Cambodian delegation would soon travel to New York and expressed his hope that the negotiations could resume at that point. Once again, it seemed as if substantial progress had been made toward resolving the issue of retributive justice for the Khmer Rouge. On at least one issue, however, there may have been a misunderstanding between the two sides during the second round of talks on August 28. Sok An asked Zacklin about the 1979 “Decree Law Number 01,” and whether or not the fact that it included the death penalty would render the law invalid under Cambodia’s current constitution, which prohibits the death penalty. Zacklin replied that the issue of retroactivity does not apply to penalties, only to substantive law. Sok An understood this to mean that Zacklin had confirmed the “validity” of the law and that the UN accepted it. In fact, it was not at all clear if the UN legal official was familiar with the text of Decree Law Number 01, or whether he would find it an acceptable legal instrument should the substance of the decree come to his attention. Nevertheless, about a week after the UN team returned to New York, Cambodia’s military prosecutor issued new indictments for both Mok and Duch, charging them with genocide under Decree Law Number 01.34 But nowhere in Cambodia’s legal code was the crime of genocide either defined or proscribed. For his part, Hun Sen was not pleased with the results of the UN negotiating mission. In mid-September he arrived in New York, and he was not carrying a second Cambodian draft of the Khmer Rouge tribunal law, as Sok An had suggested might be the case. Instead, Hun Sen presented the UN Secretary-General with an Aide Memoire asking the world body to terminate the Office of the Special Representative of the Secretary-General for Human Rights in Cambodia, and to transform the mandate of the UN Center for Human Rights in Phnom Penh from a monitoring role to a technical assistance role.35

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The main thrust of the Aide Memoire, however, addressed the tribunal issue. Cambodia had “never asked for the formation of any mixed or special tribunal, but have simply considered opening possibility of participation by foreign judges and prosecutors in the existing national court to prosecute Khmer Rouge leaders for crimes of genocide and crimes against humanity,” Hun Sen told the secretary-general. Turning to the substance, the premier thanked Kofi Annan for the input provided by the UN legal team the previous month, then proceeded to flatly reject the UN proposal that a special court be established for the tribunal. This concept, he insisted, which “is outside the umbrella of Cambodian constitution and laws in effect, will not be applicable.”36 Hun Sen then issued an ultimatum of sorts, offering the UN three options with respect to continued cooperation on the tribunal issue: 1. Participation by providing legal expertise in order to, together with Cambodian legal experts and experts from other countries, help draft additional legislation, and providing judges and prosecutors to take part in a trial (conducted) under the framework of Cambodia’s existing judiciary. 2. Participation at the level of providing legal expertise, without taking part in the trial—that is to say that there will be no other judges and prosecutors or officials in the functioning of this trial at all. 3. End involvement of the United Nations in the process of trying Khmer Rouge leaders, with [sic] Cambodia goes on with the process as it desires according to international and national laws and its own sovereignty.37

The Khmer Rouge tribunal question, Hun Sen continued, “is an opportunity for Cambodia to demonstrate the state of law, [and the] state of being master in managing its own affairs responsibly in questions of justice, peace and national reconciliation.”38 In closing, he explicitly repudiated a key element of the June  21, 1997, letter from the co-prime ministers requesting UN assistance on the tribunal: the phrase that stated that “Cambodia does not have the resources or expertise” to organize a Khmer Rouge tribunal. “In conclusion, I would like to affirm to H.E. Secretary- General that the Royal Government of Cambodia can not adopt any attitude which would mean rejecting national sovereignty and admission of incapability of its own state, as the reality shows that Cambodia is capable to realize this historic

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work, because it has true will to do so and is enjoying strong unity which serves as the basis for proceeding with this work.”39 Three days after the Cambodian prime minister presented what amounted to an ultimatum to the UN Secretary-General, U.S. Ambassador for War Crimes David Scheffer met in New York with the prime minister’s point man for the tribunal, Senior Minister Sok An. Scheffer observed that Cambodia’s existing national courts were widely perceived in the international community as notoriously corrupt, and that for the Khmer Rouge trials to secure legitimacy from the international community, it would be necessary to separate those trials from the ordinary Cambodian court system. The mechanism to accomplish this, Scheffer suggested, could be a “special tribunal” within Cambodia’s court system.40 Sok An was intrigued by the proposal and invited Scheffer to discuss the idea with Hun Sen. The next day, Scheffer and U.S. Under-Secretary of State for Political Affairs Thomas Pickering met with Hun Sen. The U.S. diplomats elaborated on the concept of “special chambers” for the Khmer Rouge tribunal and why this approach was in Cambodia’s interest. Hun Sen was sufficiently persuaded by this presentation to invite the Americans to put their ideas on paper and formally submit them to him. The following weeks were contentious. Shortly after returning to Phnom Penh from New York, Hun Sen publicly declared that “the UN should not involve itself with the trial.” 41 Sok An set about searching for legal advice on a bilateral basis, and promised only to keep the UN “informed.” “We are requesting experts from some friendly countries,” Sok An told reporters, “and we have already got some positive replies.”42 In the coming months, legal experts from the United States, France, Russia, and India would visit Cambodia to offer their suggestions on the tribunal law. His Majesty the King, Norodom Sihanouk, weighed in, taking issue with Hun Sen’s assertion that an internationally controlled tribunal would violate Cambodia’s sovereignty. “Other sovereign countries have accepted and (continue to) accept an international tribunal for judging their respective nationals responsible for crimes against humanity,” the king wrote. “This does not violate the sovereignty of those countries concerned.” 43 But for the Royal Government, defending national sovereignty would remain a guiding principle in their negotiations on the proposed tribunal. There was significant consternation at the UN over Hun Sen’s performance at the September meeting. While in principle the UN’s Office of

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Legal Affairs was willing to continue providing legal advice on the tribunal, pursuant to the legal assistance element mentioned in the first and second options of the premier’s Aide Memoire, the feeling at the secretariat was that they might have reached the end of the line. “There was no give in their position at all, they didn’t budge an inch,” one UN official said of the Cambodian delegation’s comportment in the meeting with the secretarygeneral. “They brought up the sovereignty issue repeatedly, saying, ‘If France, Israel, etc., can do this, why can’t we?’ ” 44 Some in OLA were predicting that the Cambodians would simply complete the drafting of the tribunal law on their own, that the resulting document would be unacceptable to the UN, and that would be the end of the story, as far as the UN was concerned. But instead, an unexpected boost to the process was brewing. The expertise the Cambodian government was soliciting from “friendly countries” would turn out to be rather more substantive than OLA had anticipated. After having insisted for most of the previous year and a half that the UN Security Council route was the only way to go in establishing a Khmer Rouge tribunal, the United States had reevaluated the situation after the Russians and Chinese officially rejected that option. It decided to throw its weight behind an effort to forge a compromise between the UN and Cambodian positions on a mixed tribunal. Unfortunately, however, the United States neglected to adequately coordinate its actions with the UN Secretariat, and soon a perception arose in New York that the Clinton administration had an agenda of its own—one potentially incompatible with the principles the secretary-general had enunciated for the Khmer Rouge tribunal. The irritation of the secretary-general and his staff toward what they regarded as U.S. interference in the UN’s negotiations with Cambodia would gradually grow throughout the remainder of the process. Responding to Hun Sen’s invitation to draft a document outlining the U.S. ideas for a “special chamber,” Scheffer and U.S. Legal Counsel Bob Rosenstock developed the concept of a “supermajority” voting mechanism for the “special chambers.” 45 This would require at least one Cambodian to agree with the majority in decisions by the court, thereby addressing Cambodia’s concerns about sovereignty. Moreover, even if one of the international judges were to “defect” to the Cambodian side, it would still require an additional international judge for a decision to be reached. Because four of the five jurists would have to agree, the two Cambodian judges could

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never “outvote” the three foreign judges, and thus the UN’s condition that foreign judges not be outvoted would be addressed. It was a classic bit of strategic legalism. On September 26, 1999, the United States transmitted this position paper to the Cambodian government, and three days later, the Cambodian government responded favorably and invited Scheffer to come to Phnom Penh for further discussions. At this point, the UN Under-Secretary-General for Legal Affairs and Legal Counsel of the United Nations, Hans Corell, entered the picture. Corell would be the point man for the United Nations for most of the extended negotiations over the Khmer Rouge tribunal. A Swedish judge and diplomat, he served an unusually long tenure as legal counsel, from 1994 to 2004. Before the issue of the Khmer Rouge tribunal came to the UN, he had been involved in the establishment of both the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda, so this was familiar terrain. Corell is a devotee of classical legalism, par excellence. His personal website has an entire page devoted to the “Rule of Law.” 46 He would find the Cambodians to be challenging negotiating partners. The United States forwarded a detailed position paper to Corell, describing their newly elaborated proposal for “special sessions.” The paper proposed the creation of two special chambers in the Cambodian judicial system, a trial chamber and an appeals chamber, both with a majority of foreign judges and both of which would decide by supermajority vote. The paper also outlined “a narrow jurisdiction regarding suspects, time period, applicable law, a specified period of time to hold trials, foreign participation regarding judges and prosecutors, and other due process safeguards common to international practice.”47 The Cambodians would promulgate a special law authorizing the investigation of Khmer Rouge leaders responsible for the most heinous crimes, and moreover, the UN could appoint a “group of monitors” to monitor the Cambodian investigations and trials, and offer nonbinding advice to the court. Finally, the trials would be paid for by a UN trust fund, and disbursements from that fund would require the approval of the UN monitoring group, thereby providing both financial safeguards against corruption and operational leverage over the court. U.S. Ambassador to Cambodia Kent Wiedemann felt that these proposals had the potential to bridge the gap between the UN and the Cambodian government.48 On October 15, Hun Sen informed Ambassador Wiedemann

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that he accepted the supermajority proposal, but that he would insist on a Cambodian majority in both chambers of the Khmer Rouge tribunal. A period of intense diplomacy followed as the Americans attempted to formalize the proposals. Scheffer arrived in Cambodia on October 22 and began transforming his concept paper into a draft tribunal law. He met with Sok An the following day and confirmed the prime minister’s acceptance of the supermajority concept. In further discussions the next day, the Cambodians seized upon a comment by Scheffer that the “special chambers” idea was really “extraordinary,” and henceforth, the Cambodian side would refer to the proposed special court as the “Extraordinary Chambers.” 49 Momentum was growing, but it was developing between the United States and Cambodia, rather than between the UN and Cambodia. Meanwhile, the UN was beginning to feel shut out of the process. On October 25, the Secretary-General’s Special Representative Thomas Hammarberg attempted to engage Hun Sen on the tribunal concepts the UN legal team had proposed in August, but he was rebuffed. Cambodia was moving ahead with help from friendly countries, Hun Sen told Hammarberg, and he hoped that the tribunal could be established by March of 2000.50 The next day, Hammarberg plaintively told a press conference, “It’s a matter of honour for the United Nations to be interested and try to find a solution” to the tribunal issue.51 A few days later, Secretary-General Kofi Annan sent birthday greetings to King Sihanouk and commented regarding the tribunal that he was “convinced that such an extent of crimes require a judiciary procedure which meets the most elevated standards of integrity and legality.”52 The Cambodian government would have none of it. Two days later, Hun Sen told the press that Kofi Annan should mind his manners. “I want to stress that this issue does not need the approval of the U.N. SecretaryGeneral. This law requires no ratification in New York. If the U.N. would like to help us, we would welcome it. But it cannot be the master of this issue.”53 In other ways, however, the Cambodian position seemed to be moving significantly. For one thing, Hun Sen was now openly discussing the possibility of bringing the entire top leadership of the Khmer Rouge to trial. Despite his boss’s sometimes testy rhetoric, Sok An reported that the United States was trying hard to find a compromise between the UN and the Cambodian government, even though he felt there was still a way to go: “The

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United States has declared publicly that it is trying its best to mediate between Kofi Annan and the Cambodian government but up to now I see the positions are still far apart.”54 But the U.S. ambassador in Phnom Penh was optimistic. Negotiating this kind of deal was “the art of the possible,” Wiedemann said, and U.S. diplomacy had accomplished more than he had thought possible. “The deal we worked out absolutely provides UN control, through veto by international judges in all chambers, [and the] creation of a special tribunal as a functional analog to Zacklin’s demand for an ad hoc tribunal.”55 Wiedemann thought the United States had gotten just about everything the UN would need in order to sign on to the deal. But in New York, UN officials were reacting with skepticism to what they were hearing about the emerging Cambodian law. When Scheffer, Bob Rosenstock, and Eric Schwartz of the National Security Council met in November with UN Deputy Secretary-General Ralph Zacklin and Under-Secretary-General Hans Corell to sell the ideas contained in the Cambodian draft, they were greeted with resistance.56 Corell argued that the supermajority concept was at variance with the continental practice of majority voting by judges and might produce acquittals that otherwise would be convictions. The Americans countered that the supermajority formula would generate convictions more readily than the U.S. common-law practice of unanimous votes by juries, and that it would also provide additional due process protections to defendants by requiring more than a simple majority vote. The UN legal officials remained unconvinced. Meanwhile, legal experts from Russia and India visited Phnom Penh in early November to contribute their advice on Cambodia’s emerging tribunal law. Soon the Cambodians were satisfied with the draft law, and on December 14, Sok An’s Task Force declared that it had completed its work. On December 20, 1999, Cambodia sent the second and—so they thought— final draft of the tribunal law to the United Nations.57 Sok An informed the UN that the Council of Ministers would meet four days hence, on December 24, to adopt the draft law and send it on to the National Assembly for debate and adoption. Hun Sen appeared to believe he was on track for his projected March launch of a Khmer Rouge tribunal. Upon receiving the Cambodian draft law in New York, however, the Office of Legal Affairs felt that their worst fears had been confirmed. The draft law, in the UN’s view, was unacceptable. On December 23, the day

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before the Council of Ministers was to meet to consider the draft, SecretaryGeneral Kofi Annan wrote to the Cambodian government, asking them to delay consideration of the measure so that further discussions could be held.58 UN Counsel Hans Corell told Cambodian diplomats in New York that there would have to be extensive changes if the UN was to participate, and he submitted comments on a number of key provisions in the draft. Cambodia’s Tribunal Task Force was taken aback by the UN response, but amid a flurry of mediation by Ambassador Scheffer, the Cambodians rescheduled the review by the Council of Ministers. The Task Force quickly prepared a new revised draft, altering Article 41, which concerned the funding of the tribunal, to respond to the UN’s objections.59 On December 28, an amended draft of the tribunal law was forwarded to the UN. The Council of Ministers would now meet on January  6 to approve the draft before submitting it to the National Assembly. Working through the Christmas–New Years holiday, OLA analyzed the revised draft carefully, and on January 5, 2000, the day before the Council of Ministers was planning to consider the draft law, the UN delivered a terse “non-paper” to the Cambodians.60 The communiqué was brutally frank, one might even say undiplomatic. “On the Cambodian side,” the non-paper stated, concerns have been expressed that the United Nations is attempting to impose upon Cambodia stringent conditions for participation in the effort to which the Government would not be able to agree. Conversely, on the UN side, concern has been expressed that any trial mechanism to which the United Nations would lend its support must possess the necessary international credibility. Otherwise, the United Nations could be accused of assisting what many would describe as a sham trial.

With language of this sort, it almost seemed as if OLA was attempting to insult the Royal Government so brazenly that it would abjure further negotiations with the world body on the tribunal question. Closely observing this exchange from the sidelines, I found myself wondering if Corell and Zacklin, as a consequence of their fidelity to classic legalism, were trying to provoke the Cambodian side into rejecting the UN as a partner in the process. The memorandum went on in a somewhat schoolmarmish tone to discuss “internationally recognized standards.” It also pointed out problems

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in the draft with the applicable law, the mechanism for appointing judges and prosecutors, the role of the investigating judge, issues related to amnesty and pardons, and further problems with the proposed financing mechanism. There were many additional items that would need to be addressed as well, the memo stressed. Among these was the problem that the coprosecutors would have to agree, and since there was no review mechanism, this would inevitably lead to paralysis. “The United Nations Secretariat will revert to these matters,” the non-paper stated, “if more detailed discussions between the Government of Cambodia and the Secretariat will take place.”61 The memo continued, pointing out several other elements that would have to be incorporated into the draft law in order for the UN to participate in the process. It also argued that an agreement between the United Nations and the Cambodian government would have to be negotiated separately and submitted for approval by the Cambodian assembly at the same time it considered the tribunal law. The memo concluded by inviting the Cambodian government to enter into “constructive negotiations” on the establishment of a Khmer Rouge tribunal “which will meet international standards of justice, fairness and due process of law.” 62 On January 6, Cambodia’s Council of Ministers convened and approved the draft law, addressing none of the criticisms contained in the UN’s nonpaper. Rather than responding negatively to the tone or substance of the non-paper, however, the Cambodian government issued an invitation to the UN to send representatives to discuss the law and possible amendments to it with the National Assembly. The very next day, the government withdrew this suggestion and urged the UN to send a delegation to negotiate with it, rather than with the assembly—which in any case, the UN would not have agreed to do. In New York, David Scheffer urged the UN to respond with dispatch to the Cambodian offer of further parley. But the UN remained skeptical and refused to send an emissary to Phnom Penh. The United States was working to try to change that skepticism, while urging the Cambodians to show flexibility. On January 8, Scheffer met with Japanese diplomats to work out a plan for Japanese Prime Minister Keizo Obuchi to press Hun Sen for additional concessions on the UN demands during an upcoming trip to Cambodia.63 On January 10, Prime Minister Obuchi arrived in Phnom Penh and urged Hun Sen to remain open to working with the UN on the tribunal issue.64 The same message was reinforced by American diplomats. The pressure paid off, with Hun Sen agreeing to

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several significant changes to the tribunal law, including adding coinvestigating judges to the already existing co-prosecutors and providing guarantees that Khmer Rouge leader Ieng Sary would not be shielded from prosecution. On January 13, Hun Sen directed Sok An to send a conciliatory message to the UN, outlining the newly proposed revisions to the law and suggesting that the UN dispatch a delegation to consider revisions of the law prior to its submission to the assembly. But at the UN, Assistant Secretary Zacklin was not ready to reconsider his position. The Cambodians are only “stringing the UN along,” he derisively told Scheffer, who had been imploring the UN to respond.65 The gap between what the UN would require and what was contained in the draft law, Zacklin felt, was simply too wide. The United States, Japan, France, and several Scandinavian countries were all urging Zacklin to return to the negotiating table, but he would not budge. As Corell had noted in his January 5 non-paper, the existence of Cambodian and foreign co-prosecutors and co-investigating judges in the draft law raised another set of thorny issues: would the Cambodian and foreign investigators work separately or as a team, and what would happen if they didn’t agree about how to proceed on a particular case? On January 12, Scheffer began to grapple with this issue. He drafted his own non-paper and proposed applying an inverted form of the supermajority concept to resolving conflicts between co-prosecutors and co-investigating judges.66 Meanwhile, the Cambodians modified their draft law to add co-investigating judges. Faced with a continuing refusal on the part of the UN to engage in substantive negotiations on the tribunal law, the Cambodian government made a few final modifications to their draft, and on January 18, submitted it to Cambodia’s National Assembly. However, responding to continued pressure from U.S. Ambassadors Wiedemann and Scheffer, Sok An refrained from scheduling a session with the National Assembly’s Legislative Commission to describe and defend the draft law, so it did not move through the legislative process. The Cambodians were still holding out hope that the UN could be induced to return to the negotiating process. On January 19, Scheffer met with Hans Corell, who expressed deep skepticism about the extent to which Hun Sen and Sok An could be trusted to negotiate in good faith. But Corell left the door open for Scheffer to make additional efforts at achieving a compromise that could bring the two sides

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together. Over the next two weeks, Scheffer conferred intensively with officials of the UN and the Cambodian government, and by February 2, he had transformed his January 12 non-paper into a formal proposal. It contained concessions, to be sure, but they would primarily be concessions from the UN, rather than the Cambodians. Scheffer’s paper proposed that a Cambodian majority on the tribunal would be acceptable “provided that sufficient safeguards are in place to ensure integrity of the process,” and detailed a dozen such safeguards that should be put in place.67 One of the most important concepts outlined in Scheffer’s proposal was that in any conflict between the co-prosecutors over whether to indict a particular suspect, indictments would proceed unless the trial court upheld by a supermajority vote the decision by one of the prosecutors not to indict. The next day, the Japanese government announced that it was satisfied with the supermajority concept, and the day after that, the United States delivered a demarche to the UN urging Corell to send a negotiating team to Cambodia. With considerable pressure building from member states, the media, and interested nongovernmental organizations, Secretary-General Kofi Annan finally decided to overrule his reluctant legal advisors. On February  8, Annan sent a letter to Hun Sen outlining four key points in the draft law that the UN found objectionable and pointing out again that UN participation would require that the Cambodian government conclude a formal agreement with the UN on the modalities of their cooperation. The primary points of contention raised included guarantees for the arrest and surrender of indicted suspects, amnesty and pardon questions, the independence of the international prosecutor, and the question of who would hold the majority of judges. Annan went on to list a large number of other issues that would also have to be addressed in any further negotiations.68 He closed his long and detailed letter by telling the prime minister that if the Cambodian government so desired, he was prepared to send a legal team to Phnom Penh to address the outstanding issues in further negotiations. Hun Sen was enraged by the tone of the secretary-general’s letter.69 Containing his rage, however, he promptly replied, expressing “surprise” at what he called “the gap between the position raised in your letter and ours which has been already supported by a number of distinguished UN member states.”70 Alluding to what he regarded as support for Cambodia’s position among several influential UN member states—including Japan, Russia, India, France, and the United States—Hun Sen did not respond

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substantively to the detailed list of issues raised, but instead somewhat audaciously suggested that Annan should check his own political flanks: “This gap cannot be welcomed as it is unfair to Cambodia and does not reflect the achievements of our efforts made so far. Although the gap cannot be welcomed, I still hope that Your Excellency will positively review your position with other member states of the United Nations that have contributed to the drafting of this law.”71 Two days later, Hun Sen and Kofi Annan huddled in Bangkok on the sidelines of the previously scheduled Tenth United Nations Conference on Trade and Development and agreed that there should be further official negotiations between the UN and Cambodia on the tribunal issue. On February 29, Annan informed the UN Security Council that he would send another team to Phnom Penh in an attempt to finalize the tribunal negotiations.72 “Let me assure you that the United Nations is acting in good faith,” the secretary-general somewhat defensively told the Security Council, “purely with a view to ensuring respect for the international standards that have been developed over the years.”73 This delegation would be even more high-ranking than the first; it would be led by Under-Secretary-General for Legal Affairs Hans Corell. On March  9, the secretary-general briefed a group of interested states in New York about the upcoming tribunal negotiating mission, and he added that there should only be one negotiating channel, the secretary-general’s emissaries—a pointed reference to the leverage the Cambodian side was managing to exert on the UN through bilateral contacts with member states.74 ROUND TWO

On March 16, Corell arrived in Phnom Penh for a seven-day mission. Annan had told the Security Council that the remaining issues were “extremely difficult.” He was right about that. But the secretary-general had also signaled the Security Council that he was prepared to relax his previous insistence that the “highest” standards of international justice be met in the Khmer Rouge Tribunal. Now, Corell’s assignment was to “ensure that minimum international legal standards are met.”75 With his boss under intense pressure from Perm Five members on the Security Council, Corell had his marching orders. The veteran UN negotiator was prepared to give ground on a wide range of issues in order to seek an accommodation with the Cambodians. But he would not yield on several key points. On his first day in

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Phnom Penh, Corell met with the diplomatic representatives from several interested embassies in Phnom Penh, and at this meeting, U.S. Ambassador Wiedemann suggested that disagreements among co-prosecutors could be resolved by means of a special panel of judges deciding by supermajority vote.76 It was the first mention of what would come to be known as the “pretrial chamber,” but Corell ignored the suggestion. He had still not accepted the concept of supermajority voting. After his first negotiating session with Cambodia’s tribunal Task Force on March 17, Corell emerged sounding positive but realistic. “We have had very constructive discussions this morning, and we take them point by point, but you must not expect that we can solve everything in a morning,” he told reporters.77 Sok An appeared even more positive after hearing Corell’s initial description of the UN’s position: “The U.N. reduced much of their demands,” he enthused to the media.78 As a skeptical member of the UN delegation later put it, however, “It took only one session for the Cambodians to realize that the UN would give in on everything.”79 After a lunch break, the teams reconvened for an afternoon session, in which Corell continued going point by point through the proposed articles of cooperation between the UN and the Royal Government. That evening, he indicated that the talks were proceeding smoothly. “In many cases, we have found common ground and common understanding,” Corell told reporters. “I am very pleased with the progress so far. We are working in a very good spirit.”80 Sok An was taking a close-mouthed approach to the talks, revealing little of substance. “We understand each other more and more, and our disagreements are decreasing,” he explained.81 On the four primary issues raised in Kofi Annan’s February 8 letter to Hun Sen, Corell had concluded that the UN essentially had no choice other than to accept solemn undertakings from the Cambodian government on two of them: guarantees that those indicted would be delivered by the Cambodian authorities to the tribunal and assurances that amnesties and pardons would not be used as an excuse to shield potential indictees from justice. The latter issue was handled very simply in the form of a letter from Sok An to Corell. That letter did nothing more than reiterate the clause in the Cambodian draft law, which, according to Sok An, “makes a clear statement of the government’s intent not to request an amnesty for any person who committed crimes relating to applicable law” of the tribunal.82

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These concessions by the UN cleared the way for the heavy lifting that still lay ahead. The two remaining primary issues—the independence of the prosecutor and the question of who would hold a majority on the trial bench—had become interlocked. The United Nations had still not fully accepted the U.S. proposal of the “supermajority” as a solution to the problem of ensuring the independence of the trial chambers. But Corell had decided that if he could obtain agreements from Cambodia that would guarantee that an international prosecutor had complete freedom of action to pursue justice, this would go a long way toward solving many of the outstanding problems— potentially even a compromised trial chamber. So Corell linked the question of an independent prosecutor to Cambodia’s demand for a majority of judges. The UN was ready to deal. At the conclusion of the third session on the morning of March 18, Corell sounded positive. “We have made tremendous headway during these short three meetings. . . . We are hopeful that we can come to an understanding.”83 The Cambodian side, however, was not prepared to bridge this final gap, and called for a temporary adjournment of the talks. Taking advantage of the hiatus in the talks, on Sunday the 19th, Corell journeyed to the outskirts of Phnom Penh with a large contingent of media in tow, for an exercise in symbolic politics. The UN diplomat went to the Choeung Ek “Killing Fields” Memorial, where he laid a wreath. Beneath the vacant gaze from the eye sockets of human skulls stacked in the memorial, Corell expressed his regret that the UN had failed Cambodia in her hour of need: “We have come here to remember, to remember the atrocities that were visited on the people of this country in the ’70s. This must not be forgotten. We can, of course, all ask ourselves, ‘Where were we when all this happened?’ The hope is that the United Nations today is different from what it was in those days.”84 As for the negotiations, Corell told reporters that there was still work to be done. “We are negotiating and we still are not in full agreement.”85 At the Sunday afternoon negotiating session, Corell for the first time presented the full text of the UN’s proposed draft to the Cambodian side. There would be one more session the following day, and it would be inconclusive. During the week of meetings, Corell had taken the Task Force members through the UN’s proposed draft articles of cooperation and the

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UN’s proposed draft tribunal law, article by article.86 The previous August, during the first UN negotiating mission, Sok An had expressed concern to Assistant Secretary-General Zacklin about the potential confusion that could arise from having two competing drafts on the table. Now, in March, that potential confusion had matured into an actual problem. Cambodia, after all, had a draft tribunal law pending before its assembly, but Corell never addressed Cambodia’s version of the law; he only discussed the UN’s draft. The United Nations team never actually engaged the Cambodian side on Cambodia’s pending draft law. It was an inexplicable oversight for a diplomat of Corell’s experience. A reality gap had opened between what the UN thought it was negotiating about and what the Cambodians had already committed to paper. On Tuesday the 22nd, Corell was granted an audience with Hun Sen. He emerged from the meeting to announce that the mission would not achieve final closure on the tribunal. “We have not yet arrived at an overall agreement. A few issues still divide us. But we have made great progress, and I am pleased to confirm that we are much further along the road to success than we were a week ago.”87 Later that day, Corell called Scheffer to request that he travel to Cambodia and make an attempt to resolve what Corell perceived as the final outstanding issue, the question of the independence of the prosecutors. The Cambodians felt that the UN had come very close to giving them everything they wanted. A member of the Cambodian Task Force later told reporters that the UN had given way on three of the four issues in Annan’s February letter, including “a guarantee to arrest indicted former Khmer Rouge leaders; appointment of judges and prosecutors with the majority Cambodian; and indictment of already pardoned leaders.”88 The Task Force believed the only remaining issue was the UN’s insistence on prosecutorial independence. But the Cambodians misperceived the UN stance, because Corell would not agree to a Khmer majority on the court without Cambodian agreement on an independent prosecutor, and those two intertwined issues would prove to be a very tough nut to crack. Upon his return to New York, Corell devised a potential compromise to address the independence of the Cambodian and foreign co-prosecutors. On March 24, he sent a letter to Sok An suggesting a third-party mechanism to resolve disputes between co-prosecutors and co-investigating

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judges: a panel of judges from the International Court of Justice, or similarly distinguished international jurists such as South Africa’s Justice Richard Goldstone. This document became known as the “Article 5 bis proposal,” and it would dog the negotiations for years to come.89 On the same day, Corell contacted Scheffer and complained that he had been in intense contact with the Cambodian side, but they were resisting his demand that they bring their draft tribunal law into conformity with the UN’s draft Memorandum of Understanding (MoU), and were instead demanding that the UN MoU be revised to conform to the Cambodian draft law.90 The next day, Corell repeated his request that Scheffer go to Cambodia and attempt to induce the government to concede to the UN’s demands. This request launched what would become a marathon spurt of nonstop diplomacy lasting for more than two months. A few days after the UN negotiating team returned to New York, Hun Sen made comments indicating that he too failed to fully understand the nature of Corell’s proposed trade. Speaking of the outcome of the negotiations, the prime minister said, “There remains only a small issue of the authority of the co-prosecutors, whether they indict separately or together. We cannot accept separate indictments, because the trial could turn into an international conflict and would not bring justice to the Cambodian people.”91 Even so, he was still keen to reach a final agreement. On April 1, Scheffer arrived in Phnom Penh for a six-day negotiating mission. He prepared a new version of Cambodia’s draft law incorporating many of the proposals that had been floated to resolve the outstanding issues between the UN and Cambodia. He met with Sok An to review these proposals, then flew to Bangkok to touch base with a key Hun Sen advisor, the deputy chairman of the government’s tribunal Task Force, Om Yen Tieng, who was in Thailand with Prime Minister Hun Sen. After several more rounds of negotiations in Phnom Penh with Sok An, on April 6, Scheffer called Corell to brief him on the results of his talks with Cambodian officials. Corell was not impressed with the progress Scheffer had achieved, and told him, “We will hold our ground.”92 From the UN’s perspective, the sticking point was still whether or not the co-prosecutors could act independently of one another; this issue, future events would show, was truly crucial. Two days after Scheffer left Phnom Penh, Sok An dispatched a letter to Corell outlining six different options

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for handling potential disagreements between a Cambodian and an international co-prosecutor at the tribunal.93 The UN liked one of these options—a version of Corell’s own 5 bis proposal—but from the Cambodian point of view, the six options did not constitute a set of individually vetted, signed, and sealed offers, but rather ideas for discussion. On April 12, four days after Sok An’s memo to Corell, Hun Sen met Kofi Annan at a conference in Havana, Cuba. Hun Sen wanted to chop his way through the last remaining bit of the thicket in the tribunal negotiations. He was prepared to propose a new mechanism to Annan, the special panel of judges drawn from the court that had been proposed to Corell by Ambassador Wiedemann four weeks previously.94 In making the proposal, Hun Sen was laboring directly under the influence of U.S. emissaries. Aiming to help the two sides find their way through the weeds, U.S. Senator John Kerry had again intervened in the talks.95 Prior to his trip, Kerry had been briefed by Scheffer on the state of play in the negotiations, and on the proposed U.S. solution to the co-prosecutor impasse. In the course of the Havana talks, it appeared that the sides had come to a consensus, but that would prove short-lived. The multiple channels of negotiation were about to generate some serious friction in the process. Senator Kerry gave a read-out on his talks with Hun Sen in Cuba to Hans Corell on April 17. The next day, the UN delivered a revised draft Memorandum of Understanding on UN-Cambodia tribunal cooperation to the Cambodian government, along with a suggestion for a pretrial chamber to resolve prosecutorial disputes.96 In accordance with Corell’s long-standing insistence on the Article 5 bis proposal, the pretrial chamber would decide by majority vote. But also on the 18th, Senator Kerry proposed to Hun Sen a supermajority vote mechanism for the pretrial chamber, and Hun appeared to accept the formula. On the 19th, the UN Secretary-General wrote to Hun Sen, formally proposing a pretrial chamber mechanism, which Annan believed reflected an agreement between Kerry and Hun Sen. However, Annan’s proposal still included the Article 5 bis majority vote, instead of the supermajority vote that the two had discussed. On the same day that Annan transmitted this proposal, the Cambodians had definitively decided to reject the Article 5 bis majority vote proposal and were beginning to settle on the idea of a special chamber using a supermajority vote to resolve prosecutorial disputes.97

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The next week—April 20 to 26—saw an extremely intense round of phone consultations and exchanges of letters among senior UN officials, U.S. and Cambodian diplomats, and Senator Kerry, attempting to iron out all the confusion that had been introduced into the negotiating process. The intensity of the exchanges and the confusion were beginning to take a toll on all of the participants. Reflecting this frustration, on April 27, Hun Sen wrote to Kofi Annan with the surprising demand that the temporal jurisdiction of the proposed tribunal be expanded from 1975–1979 to 1970–1999, a demand that the prime minister already knew would be unacceptable to the Chinese, the Americans, and the UN. The next day, Senator Kerry appeared in Phnom Penh yet again for another face-to-face session with Hun Sen in an attempt to get things back on track. The personal intervention worked this time—at least with the Cambodian side. On April 29, Hun Sen announced that he had accepted the supermajority proposal. But frustration was also building at the UN. On the same day that the Cambodians accepted the U.S. concept for the special chamber, Corell called Scheffer and demanded that he ensure the Cambodians agree to the four points that had been raised in the secretarygeneral’s February 8 letter to Hun Sen—two of which Corell himself had already conceded to Sok An on March 17.98 The frustrations both at the UN and in Cambodia were approaching a breaking point. On May 10, Corell told Scheffer that Secretary-General Annan had just about had it with the behavior of the Cambodians. “In the United Nations, we’ve come to the end of the road,” he informed Scheffer. “If erratic behavior is the norm, then it’s unacceptable.”99 Corell then reiterated his demand that he must receive a letter from Sok An accepting the Article 5 bis proposal transmitted by Annan to Hun Sen on April 19. While Corell was reading Scheffer the riot act, Senator Kerry was with SecretaryGeneral Annan, who expressed his growing irritation regarding U.S. involvement in the negotiations. Meanwhile, the Cambodians were in no mood to submit to what they regarded as bullying by the UN. In Phnom Penh, Sok An complained to Ambassador Wiedemann the next day that the UN was infringing on Cambodian sovereignty. He refused to respond to Corell’s demand for a letter of any kind, much less one accepting the Article 5 bis proposal, and instead demanded the UN send a letter to him. On the 12th, Secretary-General Annan informed the Cambodians that he would

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require a letter from Hun Sen clarifying the Cambodian stance on the Article 5 bis and temporal jurisdiction issues. “This is a test,” Annan told U.S. diplomats.100 The U.S. negotiators decided that the time had come to put a stop to the increasingly childish, tit-for-tat contest that had been under way between the Cambodians and the UN for weeks. On May 15, Senator Kerry, Ambassador Scheffer, and the U.S. Permanent Representative to the United Nations, Ambassador Richard Holbrooke, met with Kofi Annan to shortcircuit the escalating tensions. Annan agreed to swallow his insistence on protocol and write to Hun Sen. Two days later, he sent a letter politely inquiring whether the Cambodians accepted the Kerry proposal for a prosecutorial dispute resolution mechanism, and also sought clarification on Hun Sen’s intemperate outburst of April 27 regarding the temporal jurisdiction of the tribunal. Hun Sen responded in writing two days later, indicating that he did indeed accept the Kerry formula for a pretrial chamber. But he ignored the secretary-general’s question about temporal jurisdiction. This exchange of letters calmed the waters and laid the groundwork for another round of substantive face-to-face negotiations between the two sides. With the issue of prosecutorial independence finally resolved, now all that remained, it seemed, was for Corell to return to Phnom Penh and finalize the deal. But there was still the lingering problem of two drafts of the proposed law—the UN draft and the Cambodian draft. THE CLIMACTIC ROUND

On July 4, 2000, UN Legal Counsel Hans Corell returned to Phnom Penh yet again, expecting that this time he would finalize the remaining details for the establishment of a Khmer Rouge tribunal. Though they would only be in Cambodia for a few brief days, the UN team was prepared for a furious pace of work. They generated a blizzard of paper, including at least three different drafts of the proposed tribunal law and two drafts of the articles of cooperation.101 And this time, Corell finally realized his previous error in allowing two separate versions of the draft law—a UN version and a Cambodian version—to remain on the table. So he began this round of negotiations by working strictly from an unofficial translation of the Cambodian draft law. Unfortunately, however, by this time, the Cambodian side had become accustomed to the idea that the UN worked from a UN draft

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while they had their own draft. The Cambodian side never took ownership of the UN draft, and never signed any agreement or even offered any verbal indication that they accepted the terms contained in the UN draft.102 Anticipating the arrival of the UN negotiating team, Sok An told reporters that the talks were all but a done deal. “The principal problems have already been solved and we just need to discuss the technical details next week.”103 Corell seemed to agree. Upon his arrival in Phnom Penh, he told waiting reporters that he too felt it was mostly a matter of pinning down some details. “There are quite a few questions that we need to go over, not necessarily difficult questions, but these are uncharted waters. I hope that when I leave Phnom Penh we will have verified all the details.”104 Sok An did not seem worried, because he and Corell were merely to ratify an agreement that had already been worked out in principle by their respective superiors. He projected a highly positive outlook: “We can tell you frankly that the main points of understanding have been agreed upon by top leaders . . . Hun Sen and . . . Kofi Annan. The important point is that after my consultations with . . . Hans Corell, we will start to work with the National Assembly to push forward the project.”105 Corell noted at the outset of the mission that the most crucial element of the negotiations, as far as the UN was concerned, was the articles of cooperation between the two sides. “For me it is the international agreement that is the most important part because that is where the United Nations makes a commitment and the government makes a commitment to the United Nations.”106 Yet he was also concerned about two other possible snags: Cambodia’s National Assembly might introduce unacceptable changes to the texts during the debate to ratify the pact, and the whole process might simply be delayed for too long. Should the assembly make changes, Corell warned, “I think that the Secretary General would probably draw the conclusion that that may be the end of the story. We cannot continue indefinitely. I hope that when I leave Phnom Penh, we will have clarified all the details and that would open the doors for a debate in parliament.”107 But when Corell and his team finally departed, leaving their drafts sitting on the table at the Council of Ministers, the promised swift action from the Cambodian side did not materialize. Task Force Chairman Sok An’s presence was needed at the National Assembly’s Legislative Commission to defend the proposed law, but Sok An was finding it difficult to make time

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for this crucial piece of the work. A meeting scheduled for August 8 was canceled, Sok An said, because he was still working on the details of the UN’s articles of cooperation with members of the Cambodian People’s Party. “We will try to work this as soon as possible, but it is not easy,” he explained.108 Nonetheless, July had become August, then August became September, and September became October, and still there was little action on moving the draft tribunal legislation through the assembly. The process was dealt a further blow by Mother Nature, or so said the Cambodian government. Cambodia’s rainy season had set in, and that year the Mekong had surged out of its banks all across the country, wreaking havoc everywhere. Much of the government was mobilized to deal with this crisis, and Cambodian officials were citing this as a reason the draft tribunal law was not moving in the National Assembly. But U.S. Ambassador Kent Wiedemann was not buying this line; he told The Cambodia Daily newspaper, “Sok An happens to be in Japan right now, so he’s not looking at the floods. Ranariddh himself was just in Moscow. It isn’t as if the government is so immersed in the flood disaster that it isn’t doing business with the National Assembly. Therefore I would not accept that as an excuse.”109 On October 13, the chairman of the National Assembly’s Legislative Commission, Mohn Sophan, complained publicly that the government was being unresponsive to the assembly’s desire to move the draft law out of committee. Moreover, the government had not provided the commission with a copy of the draft Memorandum of Understanding that Sok An had supposedly negotiated with the UN. Corell had insisted that the MoU be considered and approved by the National Assembly concurrently with the tribunal law, but the government had not produced a copy of it in the assembly. In fact, Sophan had seen the draft articles of cooperation, provided by an enterprising foreign journalist, but he could not introduce into official discussions a document obtained in such an informal fashion.110 Under these circumstances, Sophan said, “We are working in the dark; we cannot work on the draft law without knowing the agreement between the Government and the UN. I have asked to see these documents, but I cannot force the Government to come to the National Assembly.”111 On October 28, National Assembly President Prince Norodom Ranariddh complained that Sok An had only spent enough time with the Legislative Commission for it to review the first eight of the draft tribunal law’s forty-seven articles. Moreover—and unbeknownst to the UN—the version of the draft law Sok

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An was slowly working his way through with the committee was a slightly amended version of the one he had originally submitted to the National Assembly in January, rather than the UN draft laid on the table by Corell in July.112 On November 20, Senator John Kerry again appeared in Cambodia to urge the government to expedite work on preparations for the tribunal. Kerry met with Hun Sen and Norodom Ranariddh, who both assured him that the National Assembly would pass the Khmer Rouge Tribunal law in December.113 Later on that same day, Sok An made his fifth appearance before the assembly’s Legislative Commission to explain and defend the draft law.114 On November 30, he completed his presentations. On December 1, the Legislative Commission finished its own review of the draft, having made some minor changes—including deleting the right of defendants to choose a foreign lawyer as their lead defense counsel—and adding a fortyeighth article, declaring that the tribunal would be disbanded when it completed its work. On December 5, the chairman of the Legislative Commission asked Ranariddh to schedule the tribunal law for debate before the entire assembly. On December 14, Ranariddh put the tribunal law on the agenda of the National Assembly’s Permanent Commission, the final step before submitting the bill to the committee of the whole. The long wait for parliamentary debate on the measure had finally come to an end. The possibility of a Khmer Rouge tribunal was finally beginning to look real, and that emerging reality was beginning to stir intense interest in farflung places. The day before Ranariddh put the tribunal legislation on the Permanent Commission’s agenda, the United Kingdom had informed Cambodian Foreign Minister Hor Nam Hong of its intention to nominate a British jurist to serve on the tribunal. On December 19, former Khmer Rouge Deputy Prime Minister Ieng Sary told journalists that he was not responsible for the genocide and urged the government to abandon the idea of a tribunal. As the tribunal law went before the full National Assembly on December 29, the Chinese embassy in Phnom Penh leaped into action, furiously lobbying assembly members to vote against the legislation. But for the former Khmer Rouge and their friends, the last-minute appeals were to no avail. On January 2, Cambodia’s National Assembly unanimously adopted the “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea.”115 Curiously, though, as many turned

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their eyes upon the Cambodian legislature to watch it adopt this historic law, they did not see National Assembly President Norodom Ranariddh and twenty-nine of his parliamentary colleagues, because they were not present in the assembly chamber for the vote. It had already been three and a half years since Ranariddh and Hun Sen had originally written to the United Nations requesting assistance to establish a tribunal. THE LONG ROAD TO PROMULGATION

When Prince Ranariddh sent the Law on the Extraordinary Chambers to the full National Assembly, he had made an enigmatic comment. “I cannot say how many years it will take for the first Khmer Rouge leader to stand trial,” he said. “It takes time. It is also up to the degree of commitment of the international community, which will have to help Cambodia implement the law.”116 It is entirely possible that he knew something of which few others were aware, because rather than marking a final step before the tribunal could be established, the passage of the tribunal law by the National Assembly turned out to be simply another milestone in a much more complicated process. There would be many more hurdles to surmount, not the least of which was the attitude of the United Nations. At the UN, the passage of the tribunal law by the National Assembly was greeted with cautious optimism, but the world body still did not know exactly what it was dealing with. After having struggled with the Khmer Rouge tribunal issue for three and a half years, the UN knew all too well that the devil was in the details, and they had not seen any details. The secretary-general’s spokesman sounded this caution on January 2: For the United Nations, it is of utmost importance to be able to ascertain that the law, as ultimately adopted by the Cambodian Parliament, is in fact in accordance with the understanding that was reached between the United Nations and the Government of Cambodia in July last year. Only when the Secretariat has an official translation into English of the legislation as adopted will it be possible to make a final assessment whether the United Nations can enter into a formal agreement with the Government of Cambodia on this important matter.117

In fact, OLA was completely in the dark; they had no idea what had been  adopted by the Cambodian parliament, because the Cambodian

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government had not provided the UN with a copy of the text it had submitted, official or unofficial, in any language. Aware of this incongruity, interested private parties obtained an English translation of the law that had been approved by the National Assembly and forwarded it to the United Nations. The document was not at all what the UN was anticipating, based on the agreements Hans Corell believed that he had reached with Sok An the previous July. The reaction from New York was swift and sharp. On January 9, Corell wrote to Sok An, demanding immediate changes to seventeen of the tribunal law’s forty-eight articles.118 Corell was particularly adamant that these changes should be made before the law proceeded to debate in the Cambodian Senate, “since this may be the last opportunity to make adjustments to the law before it is finally adopted and promulgated.”119 The letter contained harsh and uncompromising language, including six instances of the word “insist,” as well as such imperative terms as “unacceptable” and “a determining factor,” and even a “must” that was underscored. It was clear from Corell’s letter that the law passed by the National Assembly was completely unacceptable to the United Nations. On January  11, Cambodia’s Senate began to debate the tribunal law, adopting the first nineteen articles—four of which had been challenged in Corell’s letter. Though he was present in the Senate chamber to defend the government’s proposed legislation, Sok An did not inform the Senate that the UN had expressed strong objections to the tribunal law. A splendid parliamentary debate then unfolded over the next four days, with senators rising to the occasion and delving profoundly into the implications of the legislation. On January 15, the Senate adopted the Law on the Extraordinary Chambers with no changes, by a vote of 51 to 0. But none of the senators was aware that the UN had found the text to be unacceptable. However, one individual who was present for the debate was fully aware of the negative reaction from the UN: David Scheffer had come to Cambodia to witness the final step in the ratification of the law. Five days after the Cambodian Senate approved the tribunal law, the Clinton administration turned over the reins of executive power in the United States to the incoming administration of President George  W. Bush. Scheffer’s tenure as Ambassador at Large for War Crimes had come to an end. As the Clinton administration ended, so did the intense focus by the U.S. government on the Khmer Rouge tribunal. It would be more than a full year before the Bush

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administration was able to devote any attention to the matter, and by then, the situation would be dramatically transformed. After approval by the Senate, the tribunal law was forwarded to Cambodia’s Constitutional Council, which met two weeks later, on February 2, to begin deliberating on the constitutionality of the measure. The council convened again on February 12, issuing a detailed decision on the tribunal law. It found several problematic issues but determined that none of these would invalidate the law.120 However, they added one caveat. The Constitutional Council found that references to Cambodia’s 1956 penal code in the law were troubling, because the 1956 law authorized the death penalty, while Cambodia’s 1993 Constitution prohibited capital punishment. Although Article 38 of the tribunal law clearly specified that “All penalties shall be limited to imprisonment,” nonetheless, there was concern that the reference to the 1956 penal code could introduce an element of ambiguity. The council therefore concluded that the tribunal law was “hereby declared to be in accordance with the Constitution, except for any mention of ‘. . . third-degree criminal penalty’ [i.e., the death sentence] in Articles 209, 500, 506 and 507 of the 1956 Penal Code, referred to in Article 3 of this Law.”121 This decision set the stage for a nearly half-year long delay of game. The almost-but-not-quite constitutional law was returned to the Council of Ministers, where it languished quietly for months. On May 25, some fourteen weeks after the Constitutional Council decision, Sok An informed Corell that there was a regrettable delay in the final preparations of the law due to objections from the Constitutional Council concerning a “mistaken” reference to the death penalty.122 By this time, Corell had made numerous formal requests to the Cambodian government to provide him with an official translation of the tribunal law, but none had been forthcoming. On June 5, Sok An told reporters that the government was “too busy” to attend to the revision, and that they would return to the issue after the annual donors’ conference in Japan.123 At that conference during the second week of June, Cambodia’s leaders got an earful from the country’s bilateral and multilateral benefactors, who demanded to know why progress on the tribunal seemed to have come to a standstill.124 Hun Sen responded to the pressure in Tokyo by issuing a statement asserting that the tribunal could begin by December.125 Upon their return to Phnom Penh, as Sok An had promised, the stalled tribunal law again began to move. On June 19, Hun Sen told reporters that

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the Council of Ministers would address the amendment to the Law on the Extraordinary Chambers at a meeting later in the week, and they would make quick work of it. “It will take only 15 minutes,” he predicted.126 The Council of Ministers met that Friday and proceeded to approve a onesentence addition to Article 3, stating: “Punishments under article 209, 500, 506, and 507 of the 1956 Penal Code are determined that the maximum penalty is life time imprisonment pursuant to article 32 of the Constitution of the Kingdom of Cambodia and is additionally emphasized under article 38 and 39 of this law.”127 Emerging from the meeting, the prime minister announced that the amended tribunal law had been accepted by the Council of Ministers and urged that it be swiftly ushered through the remaining procedural steps: “There is no more time to delay,” he said. “So let’s close a dark historical page and not let the Khmer Rouge haunt us anymore.”128 The next week, Sok An informed the United Nations that the tribunal law had been revised to address the criticisms from the Constitutional Council, and that it would now move through the parliamentary process once more prior to formal promulgation. In response, the secretary-general’s spokesman noted that besides the tribunal law, there remained the question of the Memorandum of Understanding to which the UN Legal Counsel had devoted so much attention the previous year. “No trials can start until the Memorandum of Understanding is signed and ratified,” the spokesman observed. Moreover, the tribunal law must “be in conformity with a Memorandum of Understanding” in order for the UN to proceed in assisting with the tribunal.129 Prime Minister Hun Sen reacted to the UN’s comments with an unusual degree of venom, telling the Council of Ministers, “It looks like the U.N. is forcing Cambodia to do whatever they want. It looks like the U.N. is trying to play Cambodia like a game.”130 He then announced that Cambodia had decided to abandon cooperation with the UN on the tribunal and ignore the Memorandum of Understanding. “If the draft law is adopted, we will not practice the agreement between the Cambodian government and the U.N.”131 After the meeting, he told reporters, “I’d like to tell the UN to be quiet . . . and leave Cambodia to work on this. If the legislative body only wants to get advice from the (UN), then there’s no need to have a country.”132 Cambodia was prepared to handle the tribunal matter independently. “If it is better to conduct a trial without U.N. participation, Cambodia can conduct the trial alone,” he added.133

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Hun Sen’s outburst was followed by a new set of hurdles. Sok An wrote to Corell and once again rekindled the argument over whether the agreement between the UN and Cambodia should be rewritten to conform to the wording of Cambodia’s tribunal law, as Hun Sen had long insisted, or whether the tribunal law should be altered so that it contradicted nothing in the Memorandum of Understanding, as the UN had insisted from the beginning. As this disagreement began to mature into another potential standoff, the tribunal law itself rapidly wound its way through the final steps of the promulgation process. The National Assembly passed the revised tribunal law on July 11 and sent it on to the Senate, which likewise adopted it on July 23. The Constitutional Council spent two hours debating the onesentence revision on August 3 and gave the law a clean bill of health on August 7. On the same day, lawyers for the incarcerated former Khmer Rouge secret police chief, Duch, said that their client would confess and implicate the senior Khmer Rouge leadership. On August 10, King Norodom Sihanouk affi xed his royal seal and signature to the tribunal law,

FIGURE 3.1 . Former KR soldiers near Trapeang Thma Dam, December 1999

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formally promulgating the measure. In Cambodia, it was now the law of the land that a Khmer Rouge tribunal would be established in cooperation with the United Nations. The only problem was that in the UN’s view, the new tribunal law was totally unacceptable. The UN’s frustration with the role of American diplomats in the negotiating process, as well as with Cambodia’s entire attitude toward the negotiations, had been growing steadily for more than two years. That frustration was approaching a breaking point. Meanwhile, the Cambodian side was satisfied that they had devised a legal structure that would allow them to safely conduct a tribunal without endangering either the power of the ruling party or the hard-won peace that the country had been enjoying for only a few years. Those two values were the bottom line as far as the ruling party was concerned. Nonetheless, Secretary-General Kofi Annan and Under-Secretary-General Hans Corell regarded themselves as the guardians of “international standards” in legal affairs, and that put them directly at odds with the Cambodian insistence on maintaining political control over any judicial proceedings. There was about to be a major train wreck in the process of negotiating justice for Cambodia.

Chapter Four

JUSTICE DELAYED

Kofi Annan and Hans Corell were international civil servants operating at the highest level, and they were highly idealistic about protecting the values of the organization they served. Annan himself was very much a creature of the UN, having been a lifelong employee of the organization and the first secretary-general to rise through the ranks before being appointed as its top official. Cambodian Prime Minister Hun Sen and Deputy Prime Minister Sok An, in contrast, were seasoned politicians from a very rough neighborhood, and they were accustomed to doing whatever it took to win. Hun Sen, in particular, was literally a jungle fighter. The confrontation between the two pairs would be an ugly fight, but in the end, the civil servants would be outmatched. The fight would also burn another two years off the clock, making it that much less likely aging potential defendants would survive long enough to see their day in court. THE LONG ROAD TO YES

The promulgation of the Khmer Rouge tribunal law was heralded in Cambodia and throughout the international community as a historic accomplishment. Messages lauding the new law flowed in from near and far. Even Vietnamese officials, often tight-lipped about matters pertaining to the

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Khmer Rouge, welcomed the measure and announced that their country hoped it would “make positive contributions to Cambodia’s national reconciliation.”1 It looked like the long-awaited day of reckoning for the Khmer Rouge might finally be at hand. The surviving Khmer Rouge leadership began to appear decidedly nervous. Ieng Sary went to Bangkok and checked himself into a hospital.2 Khieu Samphan issued a detailed statement denying any role in the mass killings during the Khmer Rouge regime but apologized profusely anyway, begging for the understanding of his countrymen.3 Nuon Chea publicly denied everything, insisting that far from a policy of mass killing, in fact Khmer Rouge policy had been focused on attempting to serve the Cambodian people three meals a day with “dessert once a week.” 4 Ke Pauk, whose fearsome forces once slashed across huge swaths of Cambodia killing everything in their path, was at pains to minimize his role in the genocide. “I was a very small member. I, one member, was standing in a very small part of the country.”5 Adding insult to injury, government forces swept down on the Khmer Rouge enclave in western Cambodia and confiscated all of their tanks and artillery stationed in Pailin.6 On August 18, 2001, Sok An provided the “official” Khmer-language text of the tribunal law to the United Nations, which was followed by “unofficial” French- and English-language translations on August 30. This was what Corell had been waiting for since January. But at this juncture, Corell and his senior staff in the small UN Office of Legal Affairs were reaching the climax of their negotiations on a Special Court for Sierra Leone, and thus he could not immediately turn his attention to the Cambodia tribunal matter. The delay generated some consternation in Cambodia. By the beginning of October, Foreign Minister Hor Nam Hong put on a public display of impatience. “One has the impression that the United Nations is dragging its feet, which is difficult to understand,” Hong told reporters.7 On October 2, Sok An sent the UN a message indicating that he was now prepared to receive a delegation in Phnom Penh for negotiations on the Memorandum of Understanding.8 By this time, however, UN lawyers had completed a detailed analysis of the Law on the Extraordinary Chambers, which they concluded “was flawed on so many levels” that it was hard to know where to even begin with a critique.9 Even so, OLA identified the most serious problems, and based on this review, on October 10, Corell sent Sok

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An a letter detailing eleven specific issues in the law that the UN found problematical and asked for clarification on these questions. He then returned his attention to the challenge of completing the final arrangements for the Sierra Leone tribunal—which, ironically enough, would be based on the mixed tribunal concept originally devised for Cambodia, and which would be indicting and prosecuting African war criminals long before final arrangements for the Extraordinary Chambers were agreed upon. In Cambodia, Hun Sen declared that he was “waiting for ‘yes’ or ‘no’ ” from the UN on the tribunal, and that if the UN declined to accept Cambodia’s tribunal law as it was, “I will go alone because we toppled the Pol Pot regime without the UN’s participation.”10 Corell was waiting for a response from Sok An to his October 10 letter. On November 23, Sok An wrote to Corell, reiterating the Cambodian position that Cambodia’s tribunal law would govern the conduct of the judicial proceedings and the Memorandum of Understanding would concern only the modalities of Cambodia’s cooperation with the UN vis-à-vis the tribunal.11 Sok An’s letter did not address the substantive issues contained in Corell’s October 10 letter, so the Office of Legal Affairs decided to ignore this most recent response and wait for him to respond to the questions Corell had put to him. On December 17, one of Sok An’s assistants called Corell, seeking confirmation that he had received Sok An’s November 23 letter.12 On December 18, Sok An finally wrote to Corell and told him that he would respond to the substance of the October 10 letter in due course. Meanwhile, at the UN Secretariat in New York, senior officials were coming to the conclusion that the geopolitical ground had shifted dramatically over the course of the previous year. During calendar year 2000, it had seemed to the Office of Legal Affairs that U.S. diplomats were pressuring them about the Khmer Rouge tribunal issue virtually on a daily basis. Ranking U.S. officials were regularly calling to prod the UN about the tribunal, and the U.S. Ambassador for War Crimes, David Scheffer, and the U.S. Ambassador in Phnom Penh, Kent Wiedemann, maintained constant contact. If anything, the Office of Legal Affairs wished that the United States would back off a bit. On January 20, 2001, they got their wish. In the year since the Bush administration had come into office, the line from Washington had suddenly gone dead. No one from the administration was talking to OLA about the Khmer Rouge tribunal, and it was not clear if anyone in Washington cared about the issue any longer.

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The new Secretary of State, Colin Powell, had very nearly decided to abolish David Scheffer’s Office of War Crimes, but eventually elected to retain the office and appointed Scheffer’s deputy, Pierre Prosper, to fill the post. For much of the remainder of 2001, it seemed to OLA that Ambassador Prosper’s primary duty consisted of giving speeches describing why the International Criminal Court was a bad idea; the Khmer Rouge tribunal was clearly no longer a priority in Washington. “The U.S. position has dramatically changed,” one official at the UN’s Office of Legal Affairs said in October. “They used to bombard us on this issue, and now they are nearly silent, except for Kent Wiedemann in Phnom Penh.”13 Lorne Craner had been appointed as the Assistant Secretary of State for Human Rights, and he had a long record of publicly opposing the Khmer Rouge tribunal deal. Between the track record of these key Bush appointees and the resounding silence from Washington, UN officials began to suspect that the Clinton administration’s strong support for genocide justice in Cambodia had not carried over into the Bush administration. If the United States was no longer concerned about the issue and the Chinese were continuing their vocal opposition to UN involvement in a Khmer Rouge tribunal, then Kofi Annan’s attempts to push the tribunal might become untenable. By the start of the new year, the UN was beginning to consider the possibility that they should pull the plug on the tribunal negotiations. “Now we are not so sure about this whole thing,” one senior UN diplomat confided. For one thing, they had been seeing “different priorities from the U.S. government lately.”14 Given the shifting international political situation, this official did not “see a very bright prospect at this point for moving forward” with UN involvement.15 That turned out to be an understatement. On January 11, the secretary-general’s spokesman noted that UnderSecretary Corell was still waiting for a response to his October 10 letter to Sok An, and that it would not be possible to contemplate further negotiations until the questions in that letter had been answered. “It is important to have a clear view from the Government on all the points raised before a visit to Phnom Penh would be fruitful.”16 Sok An was soon under media pressure in Phnom Penh to explain what was taking so long. “The negotiations are not at a stalemate,” he insisted. “It is a matter of quick or slow progress. I hope the articles of cooperation (to set up a trial) will be signed this year.”17 He followed up a few days later, finally responding point by point

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to the issues raised in Corell’s October query.18 For the UN, Sok An’s response was the last straw. On February 8, 2002, UN Under-Secretary for Legal Affairs and UN Legal Counsel Hans Corell strode into the press center at UN Headquarters. The secretary-general’s spokesman opened the noon briefing by saying, “Our briefing today will consist of just one item, which Mr. Corell will present.”19 Corell then took to the podium and announced that the secretarygeneral had instructed him to wash his hands of the Khmer Rouge tribunal affair. “The United Nations has come to the conclusion,” Corell solemnly intoned, “that the Extraordinary Chambers, as currently envisaged, would not guarantee the independence, impartiality and objectivity that a court established with the support of the United Nations must have.”20 The law contained numerous imperfections, Corell explained, and despite its best efforts, the UN had been unable to prevail upon the Cambodian government to devise a tribunal law that was acceptable to the world body. “Unfortunately, the Government acted on its own without recognizing that an agreement must be based on the consent of both parties.”21 Consequently, Corell noted, the United Nations had no choice but to withdraw from the process. Moreover, the United Nations had studied the entire record of negotiations with the Cambodian government on the tribunal issue since the June 21, 1997, letter from the co-prime ministers of Cambodia initiated the process, and it had come to the conclusion that the Cambodian government was not engaged with the tribunal issue in a serious fashion: The United Nations has reviewed the negotiation process as it has developed from the first contacts between the United Nations and the Government in June 1997 until now. What has emerged during this period, and, in particular, since the last negotiating session in Cambodia in July 2000 has given cause for great concern on the part of the United Nations. The United Nations is especially concerned at the lack of urgency shown in the year and a half since that visit. That delay extended the time before which the aged Khmer Rouge leaders could be brought to justice. The United Nations fears that this lack of urgency could continue and affect the work of the Extraordinary Chambers, which would be vulnerable to delay.22

Though the UN thus had decided that it could no longer assist in the process, Corell continued, nonetheless it hoped that the Cambodian

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government would move forward on its own to find justice for the crimes of the Khmer Rouge regime: Recognizing the stated goal of the Cambodian Government to establish the Extraordinary Chambers without delay, this decision would enable it to make other arrangements and begin this process of bringing the leaders of the Khmer Rouge to justice. . . . The United Nations shares with the Cambodian people a desire to bring the Khmer Rouge era to a close in a way that contributes to national reconciliation and justice and wishes the Government well in its efforts to reach this goal.23

Corell’s announcement took much of the world by complete surprise— particularly in Cambodia. In many ways, it was a bold decision by SecretaryGeneral Kofi Annan, for the UN Secretariat rarely says “No, thank you” to requests for assistance from member states of the United Nations. “I can’t quite believe it will all just end like that,” one official of Cambodia’s tribunal Task Force privately commented.24 Despite his insistence that he was waiting for a “yes or no” from the United Nations and that Cambodia was fully prepared to move forward and hold the tribunal on its own, Prime Minister Hun Sen suddenly adopted a conciliatory tone. “I think it is not yet late for the U.N. to change the decision. The Cambodian doors still remain open.”25 On February 12, Sok An called a press conference to express his shock and dismay over the UN decision—as well as to defend the work of his Task Force against Corell’s accusation that the Law on the Extraordinary Chambers did not embody international standards of justice. In Corell’s remarks, Sok An complained, “there is an abstract reference to ‘international standards of justice,’ but Excellency Hans Corell does not provide a single instance in which the Law on the Extraordinary Chambers contradicts such standards.”26 Moreover, he insisted, Cambodia had not “rejected” the UN’s proposal for articles to govern the cooperation between Cambodia and the UN in the tribunal. Despite these misunderstandings, Cambodia remained open to a change of mind by the UN. The Royal Government was determined to find justice for the Khmer Rouge, he concluded, adding, “We believe that the Law promulgated on 10 August 2001 provides a sound foundation for such a process based within the Courts of Cambodia with international participation and meeting internationally

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accepted standards, and earnestly we hope that the United Nations will be a part of this process.”27 For its part, with Corell’s announcement, the U.S. Department of State suddenly realized that it had been asleep at the switch. Awakening from their more than year-long slumber, State Department spokespersons began issuing earnest statements of support for the Khmer Rouge tribunal process, urging the UN to reconsider its decision to withdraw from the negotiations. Similar appeals were issued by France, Britain, Japan, Australia, the Netherlands, and numerous other nations. An intense flurry of indignation flooded into the United Nations. Even the new UN Special Representative of the Secretary-General, Peter Leuprecht, seemed shocked by the secretariat’s decision and was not particularly supportive of his boss’s views on the matter: “I hope this is not the last word . . . personally I am not willing to give up. . . . I personally have seen very few countries that support the decision. I think that the decision taken in New York was a decision of the (U.N.) Secretariat.”28 In response to the blizzard of criticism, Annan defended his withdrawal from the talks, saying that those who wished to see the UN reconsider its position first needed to persuade “Hun Sen to change his position and attitude.”29 It appeared that years of Hun Sen referring to the UN as “germs” and the secretary-general as “idiotic” had taken their toll.30 Kofi Annan refused to budge. LIFE AFTER DEATH FOR THE NEGOTIATIONS

Over the succeeding months, Cambodian officials alternately blew hot and cold on the Khmer Rouge tribunal question. In March, Hun Sen issued an ultimatum, insisting that the UN had only three more months to change its mind. “Our patience is limited,” he threatened, somewhat unconvincingly.31 In April, Hun Sen implied that Cambodia did not really need the UN in order to address the tribunal issue, saying, “We can’t wait endlessly” to return to the negotiating table. “The Khmer Rouge leaders are too old and could be dead before a trial. The Khmer Rouge trial is like fish in a cage waiting to be cooked.”32 By the middle of May, the prime minister said he had begun to suspect that a dark plot had been hatched, and that what was really going on was that the UN was secretly supporting the Khmer Rouge: “I now suspect that political tricks are being played by the United Nations to protect the Khmer Rouge.”33 In June, however, Hun Sen announced that

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there had been diplomatic progress on the matter of the tribunal. “Highlevel negotiations are going on behind the scenes and have been constructive,” he insisted on June 20.34 One thing was for sure: any such “high-level negotiations” were certainly not being conducted with the UN’s Office of Legal Affairs. On the very same day Hun Sen asserted that “constructive” negotiations were under way, Hans Corell published an op-ed article arguing that not only had it been impossible for the UN to participate further in the Khmer Rouge tribunal negotiations but also the entire process had reached the point where it was in danger of undermining all of the achievements of international justice that had been registered in recent years: When, after a long negotiation process, it appeared that the UN was being asked to be part of a court that would fall short of necessary international standards of independence, impartiality and objectivity, the secretary-general decided to end UN participation. He reached this decision because he strongly believes that the UN should not be part of a court that would fail to provide victims of the Khmer Rouge with the credible justice they deserve. In addition, UN affiliation to such a court could set a precedent for lowering international standards.35

But in fact, Hun Sen was correct. High-level negotiations had been taking place for some time, although they began in a modest way. A few days after the UN announced its withdrawal from the negotiations in February, a private group of individuals with a long-standing interest in the Khmer Rouge accountability issue quietly conceived a plan to dispatch a respected former official of the International Tribunal for the former Yugoslavia (ICTY) to Phnom Penh for discussions with the Cambodian government about the road ahead.36 The idea was that someone who had no immediate connection to any of the key political players, but who had a firm grasp on the issues involved in the Khmer Rouge tribunal and whose integrity was unquestioned in the international justice community, might be able to help the Cambodians find a way to thread the needle with the UN. If not, perhaps the Cambodians would be interested in choosing this individual to participate in the tribunal in a central role, should they ultimately decide to go ahead on their own. Payam Akhavan, legal advisor to the Prosecutor’s Office at the ICTY from 1994 to 2000, was soon on his way to Phnom Penh. Before long, the circle expanded, and other respected former senior

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officials were involved in the effort to find a solution to the impasse. Eventually, the process began to encompass individuals who could engage the secretary-general directly on the issue. On July 1, Sergio Vieira de Mello—who until May 20 had headed the United Nations Transitional Administration for East Timor, had served in Cambodia during the United Nations intervention, and was about to become the UN High Commissioner for Human Rights—appeared in Phnom Penh for a quiet meeting with Foreign Minister Hor Nam Hong. The very next day, Hun Sen offered an olive branch to the UN, indicating that his government was now prepared to radically revise its “position and attitude,” as the secretary-general had demanded. “For a compromise to try the genocidal leaders,” he told reporters, “if we have to amend the law we will do it.”37 It was a stunning turnaround for the proud Cambodian leader. The UN’s initial response to Hun Sen’s offer to redesign the Law on the Extraordinary Chambers was dismissive. “We continue to seek concrete signs that our minimum requirements for a fair and credible trial will be met,” a UN spokesman said. “We welcome the efforts of other interested parties to work toward that goal, but for now the United Nations sees no reason to change from the policy we announced in February.”38 But the seed had been planted, and it was slowly growing, albeit in a subterranean way. The Cambodian government was undeterred by the UN’s apparent lack of engagement. Foreign Minister Hor Nam Hong commented that Hun Sen and Kofi Annan had spoken by telephone before Hun Sen had made his public announcement that he was willing to make changes to the Law on the Extraordinary Chambers. “This is between Kofi Annan and Hun Sen. After speaking on the telephone they understand each other. I hope, and I believe, the United Nations will answer positively.”39 Nam Hong went on to say that Sok An was willing to meet Kofi Annan “wherever, whenever,” in order to resolve the outstanding issues. The underground negotiations continued quietly through the month, and on July 29, Nam Hong announced that Secretary-General Kofi Annan had replied to a written Hun Sen appeal by saying that he would be unable to resume negotiations on the Khmer Rouge tribunal without a specific mandate from either the UN Security Council or the General Assembly.40 Kofi Annan then appeared to offer a ray of hope that the United Nations might resume negotiations under certain circumstances. On August 20, the

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secretary-general’s spokesman announced that Annan had received calls and letters from Hun Sen regarding the tribunal question, and that Annan had responded, saying, The Secretary-General made it clear that in order for him to engage in further negotiations, he needs a clear mandate from either the General Assembly or the Security Council. It is the Secretary-General’s view that it is now for Cambodia and interested Member States to pursue this matter in the General Assembly or the Security Council with a view to obtaining the appropriate mandate. If such a mandate were given, the Secretary-General would be prepared to engage in further talks with the Government in order to fulfil the mandate. As a sovereign State, Cambodia has the responsibility for the trial while the international community, through the United Nations or otherwise, can help, provided that the Government demonstrates its preparedness to ensure the observance of international standards of justice.41

In one sense, the secretary-general’s spokesman was only stating the obvious, because the secretary-general essentially is an employee of the Security Council and the General Assembly; if they issue an instruction for him to do something, then he will do it. But the mere fact that this was being stated in such straightforward terms suggested that Annan was in fact opening the door to a revival of the moribund negotiations. The Security Council was an unlikely venue for such a mandate, due to the determined opposition of China to UN involvement in a Khmer Rouge tribunal. That left the General Assembly, a body not known for issuing resolutions containing detailed negotiating instructions. Who, then, would fashion such a “mandate,” and how specific would that mandate be? The secretary-general’s announcement sounded encouraging to Hun Sen. Two days later, he told reporters, “Right now, the door is beginning to open, but the problem is whether the Security Council or the General Assembly will give the mandate. The problem is also up to the General Assembly of the United Nations because Cambodia is just one of nearly 200 members of the UN. We just have to wait and see what happens.” 42 Cambodia itself was unwilling to play a leading role in devising the new mandate. The Cambodian foreign minister traveled to New York in September for the annual opening of the General Assembly, and on departure from Phnom

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Penh, he clearly signaled that his government considered the matter of a mandate for renewed UN negotiations on the tribunal to be a task for the secretary-general and other member states: I will meet with Kofi Annan. I will not talk about the Khmer Rouge trial in this bilateral meeting, but if Kofi Annan raises the issue, I will explain Cambodia’s stance. Cambodia welcomes the continuation of [trial] negotiations and the UN’s participation. To get a clear mandate, it does not depend on Cambodia—it depends on the members of the UN. If the UN’s members can get a mandate from the Security Council or the General Assembly for Kofi Annan, we certainly don’t oppose it, because we have the will to let the UN participate. I won’t bring up the Khmer Rouge trial—this issue should be allowed to proceed quietly. It depends on Kofi Annan and the UN members to get a mandate. Cambodia is waiting to cooperate.43

Kofi Annan did not seem particularly interested in helping to devise such a mandate. He had clearly said that this was an issue for Cambodia and interested member states to address. But there were rumors that his office was attempting to lay down some markers for any such “mandate.” It was said that he wanted it to explicitly include adequate funding—a recurring problem in other UN-sponsored international tribunals, particularly for Sierra Leone. He also wanted the authority to be able to impose the highest international standards in any Khmer Rouge tribunal—a goal his negotiators had been unable to accomplish solely on the basis of the powers vested in the secretariat alone. But it was beginning to look like he might get none of this. Behind the scenes, a large group of interested countries was now working the problem. Japan had been at the forefront during the first half of 2002, and then in the second half of the year, Australia took a leading role in organizing efforts to forge a deal on the tribunal issue. On October 4, Australia’s Ambassador to Cambodia, Louise Hand, met Sok An at the Council of Ministers, and said later that she was coordinating the activities of twenty-six countries that supported continued UN involvement in the Khmer Rouge tribunal issue.44 Though not taking a visible leadership role, the United States was part of that group, as indicated by the testimony of the new U.S. Ambassador-designate to Cambodia at his Senate confirmation hearing on October 1: “The United States supports a Khmer Rouge tribunal inside

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Cambodia with UN involvement. We are encouraged by recent statements by the UN and Prime Minister Hun Sen on efforts to achieve joint cooperation in a Khmer Rouge tribunal. We hope that these exchanges lead to renewed negotiations and agreement on a credible tribunal mechanism.” 45 All of this sounded very encouraging to the Cambodian government. “I am optimistic because we have solved all the main obstacles, and only small things are left over,” said Sok An on October 10.46 The UN’s Office of Legal Affairs—indeed, the entire UN Secretariat—had been completely out of the loop on the negotiations for almost the entire year, and officials there were fretting about what kind of resolution might arise out of the General Assembly. Would the resolution give them any real negotiating leverage, or simply instruct the secretary-general to return to the negotiating table with the Cambodians and then be quick about getting on with the business of establishing a tribunal?47 By the middle of October, it appeared that a draft General Assembly resolution had nearly achieved the critical mass of support required to ensure overwhelming passage. The international community had devoted enormous amounts of money and energy to the task of restoring Cambodia’s legitimacy and sovereignty during the late 1980s and early 1990s, and proclaimed that effort a major success in 1993 when the coalition government was formed. Only the Khmer Rouge problem remained, and now, a decade later, the international community appeared to be on the verge of accepting the Royal Government’s argument that as a sovereign and legitimate state, it had both the right and the duty to exercise primary control over the delicate process of delivering retributive justice for the crimes of the Khmer Rouge. All the Cambodians needed was a little help from their friends. AN AGREEMENT IN PRINCIPLE

The informal group of twenty-six countries that had been pushing to restart the negotiations set about drafting a mandate for the secretarygeneral in the form of a UN General Assembly resolution. Led by Australia, and working closely with the Cambodian government—but not with the UN Secretariat—the diplomats produced a draft resolution containing something like the mandate that had been demanded by Kofi Annan. But despite the impassioned pleas of Australia’s Ambassador Louise Hand, the Royal Government declined to cosponsor the resolution in the General

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Assembly. The Australian government interpreted this as an indication of a lack of seriousness on the part of the Phnom Penh regime, and in early November, Australia decided to withdraw the draft resolution from consideration. Into this breach leaped Japan and France, two major powers with many interests in Cambodia and a long track record of friendship toward the Cambodian government. Behind the scenes of the negotiations being led by Australia, these two countries had been quietly preparing an alternative resolution in close consultation with Sok An’s tribunal Task Force.48 This maneuver shattered the solidarity of the contact group that had been pressing for a resumption of negotiations. The new resolution did not provide the specific guidance and firm backing some nations believed was necessary for the secretary-general to succeed in renewed talks. “The resolution fails to include explicit language guaranteeing the tribunal will meet international standards, and it lacks a solid commitment from the Cambodians,” as one UN diplomat put it.49 But what the French and Japanese had done was to enlist the Cambodian government’s tribunal Task Force directly in shaping a resolution that the Cambodian side would find acceptable. Ultimately, in terms of the political terrain upon which this battle was being fought, it would not really matter what Annan or Corell thought of the resolution. Even though it refused to cosponsor the resolution, the Royal Government did call for quick passage of the measure.50 The final vote in the UN General Assembly came on December 18, 2002, and the resolution was adopted on a vote of 150 in favor and zero against, with 30 abstentions. Among those abstaining were virtually all the nations of the European Community, a group that had been at the forefront of the push for a renewed negotiating mandate. The Swedish delegate summarized the reservations of the abstaining nations during debate on the resolution by saying that “to require the Secretary-General to resume negotiations based on a text which did not address the failings of the last negotiations risked leaving the perpetrators of crimes during the Khmer Rouge period with impunity and did not guarantee international legal standards.”51 But the residual anger among some interested states over how France and Japan had managed the secretary-general’s “mandate” would have implications far into the future. Nonetheless, the secretary-general now had his mandate, even though it was not precisely what he had been seeking. The resolution “requested”

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that the secretary-general “resume negotiations, without delay, to conclude an agreement with the Government of Cambodia, based on previous negotiations, to establish Extraordinary Chambers.”52 The resolution instructed Kofi Annan to report back to the General Assembly on the results within ninety days. UN member states had overruled the best judgment of the UN’s professional staff. The political nature of transitional justice processes had been laid bare for all to see, and would soon become clearer yet. THE UN RETURNS TO THE TABLE

On January 6, 2003, Sok An, Senior Minister of the Council of Ministers and Chairman of the Khmer Rouge Tribunal Task Force, arrived at the UN in New York with a team of experts at his side, ready to tackle the remaining items at issue between the UN and the Royal Government.53 They were met by Under-Secretary for Legal Affairs Hans Corell, but substantive negotiations were not part of his agenda. Corell opened the talks by suggesting that Cambodia’s Khmer Rouge tribunal law was so deeply flawed that the only sensible course of action was for Cambodia to abandon it and for the negotiations to begin all over again from scratch, starting with the original proposals that had been laid on the table by the UN in August 1999. Sok An protested that this did not reflect the intent of the General Assembly. He pointed to the December  18 General Assembly resolution’s language, noting that it specified an agreement should be based on the previous negotiations. The resolution requested “the Secretary-General to resume negotiations, without delay, to conclude an agreement with the Government of Cambodia, based on previous negotiations, to establish Extraordinary Chambers” for a Khmer Rouge tribunal. Consequently, he argued, the discussions should pick up where they left off in February 2002, accepting Cambodia‘s August 2001 tribunal law as a baseline and proceeding to negotiate the Memorandum of Understanding. Hans Corell curtly dismissed Sok An’s objections, asserting that the Cambodian side simply had an incorrect interpretation of the General Assembly resolution. He stated that the resolution “emphasizes” that the tribunal must operate “in accordance with international standards of justice, fairness and due process of law,” and also stressed “the importance of ensuring the impartiality, independence and credibility of the process, in particular with regard to the status and work of the judges and prosecutors.”

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Corell argued that because the existing Cambodian law failed to meet these requirements, it was necessary to begin all over again with a clean slate, starting with the UN’s original proposals. The secretariat was planning to hold its course and ignore what numerous UN member states had publicly said that they intended: that the secretariat should conclude a deal on the tribunal forthwith. The respective opening positions of the two sides could hardly have been further apart. Somehow, nonetheless, the two sides managed to talk in New York for eight days, meeting for a total of seven sessions. The secretariat was playing hardball. Issues the Cambodian side believed had been resolved years before were suddenly thrown into contention again, such as the question of whether Cambodians or internationals would have a majority of judges on the court. The marathon talks climaxed on January 13, when the secretary-general granted an audience to the Cambodian delegation. Annan was uncharacteristically cold, and he was unyielding. There was no point in holding further discussions, he informed Sok An, unless Hun Sen first agreed in writing to the new conditions the UN was demanding. With that, the Cambodians were sent on their way. Upon his return to Phnom Penh, Sok An attempted to put a positive spin on the mission: “I am optimistic that the UN will come in February” for further discussions, he told reporters. “We should not say it was a failed mission or a successful mission. This is a process of necessary work.”54 But the secretary-general had not budged an inch. Unless powerful member states were to force Annan to reverse his insistence upon maintaining the standard UN legal model in any UN-assisted trial, it seemed likely that any further negotiations would result only in more inconclusive dithering. And indeed, that is exactly what was about to happen. On February 13, three weeks after Sok An had returned to Phnom Penh, a delegation of diplomats from the United States, France, India, Japan, the Philippines, and Australia met with Kofi Annan and Hans Corell to express their displeasure over the secretariat’s interpretation of the December 18 General Assembly resolution.55 They insisted that the secretary-general accept the General Assembly’s directive that Cambodia’s Khmer Rouge tribunal law be taken as the basis to negotiate an implementation agreement for the tribunal. The friends of Cambodia in the international community, working hand in hand with the Cambodians, aimed to force the UN Secretariat to submit to the wishes of Hun Sen’s government. Later that same

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day, the Cambodian mission to the UN delivered a letter from Hun Sen to the secretary-general, inviting him to send a delegation to Phnom Penh to resume negotiations. The letter was dated January 31.56 The Cambodians knew how to play hardball too. Exactly one month after the delegation of member states confronted Annan and Corell, on March 13, Corell arrived in Phnom Penh at the head of a UN delegation, prepared to negotiate on what he called the “last chance” for an agreement.57 On the first day of the negotiations, Corell made one last feeble attempt to impose the UN Secretariat’s vision of justice on the Cambodians, and then he caved in. Over the course of the subsequent three days, the UN and Cambodian teams hammered out a final draft Memorandum of Understanding designed to govern the relationship between the UN and the Cambodian government in the tribunal. The Chairman of Cambodia’s tribunal Task Force appeared satisfied with the result. When the two teams had concluded their work, Sok An told reporters simply, “We have traveled a long road.”58 Under-Secretary Corell seemed less than enthusiastic about his diplomatic accomplishment. During the final negotiations, he had told a meeting of NGO representatives, “My hands are tied,” reflecting his deep unease with his marching orders.59 After the tentative agreement was reached, when asked if the new document addressed the secretary-general’s stated concerns regarding the independence of the court, Corell evaded the question: “It’s not for me, and it’s not for the Secretary-General either, to determine whether this is good enough or not. The situation is different from a year ago when the Secretary-General lost confidence in the process and withdrew. What we have now is first a situation where the General Assembly’s in charge. It’s their responsibility and we have to execute it’s [sic] decision.” 60 When asked again, directly, if the agreement would provide for judicial independence, the UN’s chief legal counsel demurred. “As an international civil servant I have been given the task to negotiate this text and I have done so to the best of my ability. My personal opinion is a different matter.” He asserted, however, that the agreement did meet some of the objections the UN Secretariat had sought to overcome, particularly insofar as the agreement would now be legally binding on Cambodia—something the Cambodians had steadfastly refused to accept until the final round. According to Corell, the agreement also provided better assurances that the trials

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would be in conformity with international standards. In summarizing the nearly six years of negotiations, Corell attempted to put the results into the best possible light. The draft agreement, he insisted, was “designed to ensure a fair and public trial by an independent and impartial court.” 61 For his part, Kofi Annan gave voice to serious reservations about just how independent and impartial the Khmer Rouge tribunal might actually turn out to be. In his report to the General Assembly on the draft agreement with Cambodia, he observed in three different places that there “still remains doubt in some quarters regarding the credibility of the Extraordinary Chambers.” There was no doubt that one of these “quarters” was the UN Secretariat itself. The secretary-general also felt it necessary to mention at three different places in the report that his representatives had negotiated an explicit mechanism providing for the withdrawal of the UN from the tribunal process if there were “any deviation by the government” of Cambodia from the terms of the agreement. And he also dwelled extensively in the text of the report on the question of “corruption and interference by the executive with the independence of the judiciary” in Cambodia.62 Having reached the conclusion of an extraordinarily long series of negotiations, Annan was clearly not feeling confident about the prospects for the Extraordinary Chambers. In contrast, the UN General Assembly embraced the draft agreement, though not without a little more political drama. Reflecting SecretaryGeneral Kofi Annan’s unease, the agreement would not go from being initialed to being approved without some additional contention, highlighted by signs of wavering in the U.S. position. On April 30, 2003, U.S. Secretary of State Colin Powell appeared before the Senate Appropriations Committee Subcommittee on Foreign Operations—the congressional committee with jurisdiction over the State Department’s budget. The chairman of the committee, Senator Mitch McConnell, informed Powell in no uncertain terms of his opinion that in view of the “lawlessness and impunity that has become the hallmark” of Cambodia, “talk of a Khmer Rouge tribunal using Cambodian courts and judges makes no sense.” 63 Powell responded cautiously to this broadside, telling the senator that he agreed, and that he would soon be traveling to Cambodia, where he would take the opportunity to meet with the leadership and “express our concerns to them.” 64 It was time to batten down the hatches on Cambodia policy and lower the U.S. profile.

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The very next day, the UN General Assembly’s Third Committee convened to debate the draft agreement between the UN and Cambodia on the Khmer Rouge tribunal. The resolution to adopt the agreement was cosponsored by Cambodia, France, India, Japan, the Republic of Korea, and the Russian Federation. Despite its long-standing policy of support for the tribunal process, the United States was not among the cosponsors. The measure under consideration was introduced by Japan, and then UN Legal Counsel Hans Corell briefed the committee on the draft agreement. Among other issues, Corell noted his continuing concern regarding the fact that Cambodian judges would hold the majority in the chambers of the proposed tribunal.65 Then Cambodian Ambassador Ouch Borith spoke passionately in favor of the measure.66 “I’ll never forget the days when 12 members of my family and more than 2 millions of the Cambodian people who were executed and buried in mass graves,” he told the gathered members of the Third Committee.67 What happened under the Khmer Rouge regime, he continued, “still haunts me and my people, and I cannot wipe out this nightmare either. One must listen to what the Cambodian holocaust survivors have to say.” There was a good reason Cambodia had come to the UN seeking assistance in bringing the Khmer Rouge to justice, he said: It is documented, and it should be recognized, that the result of the blows inflicted by the Khmer Rouge on the entire Cambodian cultural, economic, political and social fabric of the country is the cause of the disadvantaged Cambodian judiciary and the weak legal system. Hence, the reason for our Government’s request for United Nations assistance and participation in the process of the Khmer Rouge trial. It is also very important to understand that the Law adopted by our legislature was the outcome of the complex negotiations between Cambodia and the UN, and contains within it a number of significant compromises made by both parties. We have requested not only international assistance but also international participation in the trials and we have agreed to share with the international community the heavy task of judging the serious crimes committed in our own country by our own people.68

Ambassador Borith closed by calling for the resolution to be adopted by consensus, saying that the history of Cambodia should never be allowed to repeat itself.

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As always, however, first there was the question of money. In his report on the prospects for a Khmer Rouge tribunal, the secretary-general had recommended that the trials be financed by mandatory assessments from member states’ regular dues to the UN, a change from the established practice of paying for international tribunals through voluntary contributions. Moreover, the U.S. delegate argued that the UN vote on the draft tribunal agreement should be delayed until after Cambodia’s July 2003 National Assembly elections. Between the arguments for a delay in adopting a resolution approving of the draft agreement, the sentiment of some members that further negotiations were advisable, and the question of how the tribunal would be financed, the time for debate expired, and the committee resolved to return to the issue the following day. On Friday, May 2, 2003, the Third Committee reconvened and once again was seized with the issue of the draft agreement on a Khmer Rouge tribunal. By now, it had become clear to all that there was a strong majority in favor of the proposal and that it would be adopted with overwhelming approval. The delegate from the Netherlands sounded a note of disappointment with the way the process had come to a conclusion. “We do want to express our serious concerns over the path that will now be followed,” the Dutch ambassador began. We would have preferred further negotiations between the UN and the Cambodian government in order to assure that international standards of justice are upheld. . . . We do share the Secretary General’s doubts whether the agreement ensures that the Extraordinary Chambers will be able to uphold international standards of justice, which should be a prerequisite for any UN assistance. The concerns still raised are considerable, and they range from concerns over judicial and prosecutorial independence, applicable law and decision making processes to those over witness protection. We note the concerns expressed by the Legal Counsel yesterday on the lack of a majority for international judges and on the lack of clarity over UN status for officials of the court.69

The Swedish delegate addressed the committee on behalf of his own country as well as Denmark, Finland, Iceland, and Norway, saying they collectively regretted the fact the tribunal would be financed by voluntary rather than mandatory contributions, and urged member states to “contribute without delay” so that the Extraordinary Chambers could be promptly

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established.70 Striking a softer tone than the ambassador from the Netherlands, the Swedish ambassador nonetheless also sounded a note of caution on the still-contentious question of the extent to which the tribunal would exhibit judicial independence: The Nordic countries would like to emphasize that, despite the fact that the Extraordinary Chambers is now a national court, the trials must be conducted in an impartial, efficient and independent way and in accordance with international standards of justice, fairness and due process of law. The agreement must, to ensure this, be implemented in its entirety. In this context we also note the provision on withdrawal of assistance by the United Nations should the agreement not be implemented and respected.71

The U.S. representative also addressed the committee, saying that while “he remained committed to the process of the trials and supported the resolution in substance,” the United States was “dissociating” itself from the resolution “due to timing.” The United States “would have liked to see the resolution introduced after the Cambodian elections in July.”72 Senator Mitch McConnell had managed to move policy, forcing the U.S. government into distancing itself from the Khmer Rouge tribunal, but he was not able to change the overall U.S. commitment. After several other countries had expressed their views, the committee decided to adopt the resolution approving the draft agreement on the Khmer Rouge tribunal. The decision was taken by consensus rather than by a recorded vote. Though somewhat anticlimactic, following a quarter century of efforts to achieve accountability for the crimes of the Khmer Rouge regime, it was clearly a historic day in UN chambers. At a plenary meeting of the full UN General Assembly on May 13, the UN formally adopted the agreement, ratifying the decision of its Third Committee.73 Cambodia’s Council of Ministers had already approved the draft agreement.74 The next step in the process was for the Cambodian government and the UN to raise the agreement to the status of an international treaty with a formal signing ceremony. On June  6, Hans Corell and Sok An appeared in Phnom Penh’s Chaktomak Theater, and before an overflow audience of dignitaries, signed the tribunal agreement on behalf of the United Nations and the Cambodian government. After innumerable delays and obstacles, the road finally appeared clear to bring the Khmer Rouge

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FIGURE 4.1. Michael Pollanen at Kraing Ta Chan memorial, June 2003

leadership to justice. At the ceremony, however, Sok An sounded a note of caution, saying, “The road ahead will also not be easy, as we move from the negotiating phase to the implementation phase.”75 Indeed, it would be neither easy nor short. Precious years had been lost in the course of the struggle to bend the United Nations Secretariat to the will of Cambodia’s leadership. But in the end, in their collective wisdom, the member states of the UN had accepted Cambodia’s implicit argument that as a sovereign state, and as the site of genocidal violence, it had both the right and the responsibility to oversee a judicial accounting of the crimes. And despite the secretary-general’s entreaties to the contrary, the General Assembly also decreed that the tribunal would be funded by voluntary donations rather than mandatory assessments. As a result, more years still would be lost in the process of figuring out how much money the tribunal would cost and who would ultimately pay the bill. More than a decade on, this latter decision would directly yield justice delayed.

Chapter Five

HYBRID JUSTICE

It had taken a year and a half of political maneuvering for Cambodia’s leaders to persuade the UN to accept their vision for the structure of the tribunal. Now domestic political complications within Cambodia would add significantly to the delay in launching the tribunal. The government delivered the signed tribunal agreement to the National Assembly for parliamentary consideration just weeks before the July 2003 national elections, and there it would remain until the new assembly could be constituted—sixteen months later. In the interim, however, both the UN and the Cambodian government proceeded with planning for implementation of the agreement. The time was put to good use, as there were myriad details to consider and sharply conflicting views on how many of those details should be handled. THE LONG WAIT FOR RATIFICATION

At the signing ceremony in Phnom Penh for the UN-Cambodia tribunal agreement on June 6, 2003, Senior Minister Sok An declared, “Now the Agreement is signed, we will pass it to the legislature for ratification in accordance with our internal law and procedures. We expect that later this year we will be in a position to establish the Extraordinary Chambers.”1 Ten days later, Prime Minister Hun Sen followed up on this declaration with a letter to the National Assembly, urging the parliament to expedite

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ratification of the UN agreement.2 In less than forty-eight hours, the agreement arrived in the office of the president of the National Assembly, who confidently predicted that it would be processed through the parliamentary machinery “in a very short time.”3 However, Monh Sophann, chairman of the National Assembly’s Legislative Committee, was not so sure, saying, “I doubt the National Assembly will ratify the bill as soon as we would like, because there is not enough time to examine it, and the [national elections] campaign will begin next week.” 4 Sophann’s prediction would prove to be correct. Royalist members of parliament initially resisted the government’s proposal to move the UN agreement through the National Assembly prior to the national elections, on the grounds that this task would distract them from preparations for the campaign. Prince Ranariddh was eventually persuaded to cooperate, however, and he scheduled a meeting of the assembly’s Standing Committee for June  27. The Standing Committee must approve any legislation before it can move on to the Legislative Committee for detailed consideration. On the appointed day, five of the twelve Standing Committee members—all from Prime Minister Hun Sen’s Cambodian People’s Party—failed to appear for the meeting, preventing the committee from achieving a quorum.5 The meeting was rescheduled for June 30, but again, committee members from the ruling party failed to appear, and consideration of the measure was postponed. Royalist assembly members began to suspect that they had been set up, and Legislative Committee Chairman Mohn Sophann accused the CPP of deliberately stalling the agreement.6 After another two weeks of fruitless efforts to encourage CPP members to appear at the assembly and engage with the issue, on July 16, leaders of the National Assembly conceded that the matter would have to wait until after the election.7 Despite the lack of action at the National Assembly, other concerned parties were moving rapidly to lend support to the tribunal process. Two days before the agreement was signed in Phnom Penh, Sweden decided to underwrite the operations of the government’s tribunal Task Force, and one month later, the United Kingdom joined in by providing additional funding.8 On June 18, Australian Foreign Minister Alexander Downer announced that his country would give $1.2 million to assist in establishing the tribunal and collecting evidence.9 In early October, the U.S. embassy in Phnom Penh announced that a major grant would be given through the U.S. Agency

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for International Development to support the work of NGOs that were preparing projects in connection with the tribunal.10 In late October, a coalition of international NGOs sent a delegation to Phnom Penh for talks with the government’s tribunal Task Force, local NGOs, diplomatic missions, and UN agencies on aiding various aspects of the tribunal process, including training, outreach, and monitoring.11 International momentum for the tribunal seemed to be building, despite the political inertia in Phnom Penh. Cambodia’s national elections were held on July 27, and the Cambodian People’s Party won a plurality, taking 47 percent of the vote. The opposition Sam Rainsy Party for the first time placed second with 22 percent, and the previously number two royalist FUNCINPEC party fell to third place with 21 percent. Under Cambodia’s proportional representation system, these results gave the ruling party a simple majority of 73 of the 123 National Assembly seats, but this was several seats short of the two-thirds majority required to form a government. It would consequently be necessary for the ruling party to form a coalition with one or both of the minority parties.12 Instead, the two minority parties proceeded to form a coalition they called the Alliance of Democrats and began to bargain hard with the ruling party, putting forward a broad spectrum of demands, ranging from expulsion of CPP leader Hun Sen from the premiership to policy changes on local governance, border treaties, anticorruption legislation, and many other issues. The stage was set for a prolonged political stalemate. As long as the stalemate persisted, there would be no legislative action on the UN tribunal agreement, and therefore no formal action by the UN to establish the tribunal. But like numerous UN member states anxious to see the tribunal proceed, the UN itself saw no reason to let a temporary political dispute delay preparations for establishment of the Extraordinary Chambers. On October 1, the UN appointed Karsten Herrel to the newly created post of Coordinator for UN Assistance to the Khmer Rouge Tribunal. Herrel would head up a new UN organ, known as United Nations Assistance to the Khmer Rouge Tribunal, or UNAKRT. Just a week later, the UN proposed to the Cambodian government that Herrel should lead a team to Phnom Penh the following month to begin the process of ironing out the financial and logistical details for the tribunal. Hamstrung by the continuing political stalemate, the Cambodian government requested a delay in the UN mission, eventually agreeing to a visit in December.13

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Inside the Cambodian government, however, preparations for the tribunal were also continuing apace. In early August, the government had released a draft of its budget for 2004, which included a $7 million line item for funding the tribunal.14 Later in August, a Cambodian official revealed that the government intended to ask international donors for assistance in completing the construction of a partly built conference center on the Chroy Changva peninsula, across the Tonle Sap River from Phnom Penh, as the primary venue for the Khmer Rouge trials.15 The price tag for the conference center was put at $5 million.16 Funding for various aspects of the tribunal was becoming a central preoccupation of the government. On October 20, the government’s tribunal Task Force convened a meeting of diplomatic missions to Cambodia, briefing the representatives on the state of tribunal planning and making a pitch for financial pledges to support Cambodia’s share of the tribunal expenses. The Task Force estimated that the tribunal’s total cost for three years would be $40 million; approximately half of that would be paid out of the UN Trust Fund, and the other half would be part of Cambodia’s national budget. Om Yen Tieng, a senior advisor to the prime minister and a top official of the tribunal Task Force, made it clear to the diplomats that Cambodia expected the international donor community to pay Cambodia’s “budget” for these costs. As he put it later, Cambodia would be unable to support its $20 million share of the tribunal budget and “will present the figure to foreign donors to help contribute.”17 In late November, Finance Minister Keat Chhon announced that the government had not earmarked any domestic funding for the tribunal line item in the national budget.18 The Cambodian government’s commitment to genocide justice, as expressed in a willingness to put their money where their rhetoric was, was now becoming an openly debated question.19 These concerns were only exacerbated by the fact that Cambodia had proven unable, as yet, to secure parliamentary ratification of the UN tribunal agreement. On the eve of the departure of the UNAKRT mission, Secretary-General Kofi Annan released a report on the tribunal, flagging his chief worry about the process. “I am very concerned by the delays in the implementation of the agreement,” Annan noted, “and call upon the Government of Cambodia to ensure that its ratification is placed on the agenda of the newly constituted National Assembly as a matter of priority.”20 But when Karsten Herrel and his UN team arrived in Cambodia, they betrayed no such concerns

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and appeared to be tightly focused on pushing forward operational planning for the tribunal. Responding to questions on this score, Herrel told reporters, “Some people have raised the question of whether we may be going too fast here, jumping the gun. The establishment of a mixed tribunal . . . is a very complex undertaking. It takes time and we don’t want to start this thinking process only after the final [authorization] of the agreement.”21 The UNAKRT delegation plunged into what would be a hectic six days of negotiations with Cambodian officials and consultations with other interested parties, including diplomats as well as Cambodian and international NGOs. In the talks between the government’s tribunal Task Force and the UNAKRT assessment mission, a wide range of practical matters were discussed, and some key issues were decided. The two sides came to terms on “a concept of operations, an outline of an implementation plan with timelines, a staffing table for the court’s judicial and administrative component and the site where the trials would be held,” according to a UN statement.22 But Cambodian officials quickly disputed part of this assertion. Helen Jarvis23 and Heng Vong Bunchhat, both members of the tribunal Task Force, immediately informed reporters that no venue had been selected for the trials. “There are many options,” Bunchhat insisted.24 Notwithstanding this apparent miscommunication between the two sides, significant progress was indeed registered during the talks.25 A personnel plan calling for a tribunal staffing level of approximately three hundred persons was hashed out, with about two thirds of the staff to be Cambodian nationals and one third foreign nationals. An implementation timeline was also agreed upon; the aim was to have the tribunal up and running six months after the UN agreement was ratified by Cambodia’s National Assembly. A wide range of additional issues were discussed in varying degrees of detail, including budgets, security matters, rules of evidence and rules of procedure, and training requirements for Cambodian and international tribunal personnel. At the end of the week of meetings, the UN’s Karsten Herrel sounded optimistic about the momentum that had been generated. “The trial will be up and running some time in 2004,” he told reporters shortly before his team departed for New York.26 Herrel intended to finalize the budget details in the coming weeks and use that as the basis upon which Secretary-General Annan would issue an appeal to donors in early February for funding and personnel nominations.

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As preparations for the Khmer Rouge Tribunal began to mount in scope and detail, members of the Khmer Rouge leadership were beginning to show signs that they believed a trial was now inevitable. On September 25, Nuon Chea and Khieu Samphan had rather ostentatiously attended a Buddhist temple in Pailin to observe the annual Pchum Ben ceremony, Cambodia’s “Day of the Dead.” Ieng Sary did likewise at a temple in Phnom Penh. “Uncle Noun Chea and Uncle Khieu Samphan and Grandfather Ieng Sary all love Buddhism,” asserted Pailin Police Chief Lav Chan Chhay.27 Around this same time, Khieu Samphan traveled to Phnom Penh and visited the offices of an NGO, the Cambodian Defenders Project, to inquire as to the availability of pro-bono legal assistance should he be indicted by the tribunal. The NGO’s director, Sok Sam Oeun, was flabbergasted by the request but reportedly declined to give Samphan a firm answer. “If no one represents him, maybe we’ll consider it,” he said.28 The day after the UN mission arrived in Cambodia to work with the government on implementation details for the tribunal, Ta Mok’s lawyer began to publicly advertise for “legal experts,” “legal assistants,” and Chinese-English translators, apparently all in connection with his preparation of Mok’s defense.29 In late December, Nuon Chea declared that he would not seek legal representation if he were brought before the tribunal, arguing that lawyers are “just for rich people, not for the poor,” and that in any event, the story of his involvement in the Khmer Rouge was too complex for any lawyer to understand.30 Just before the international New Year, Khieu Samphan issued an extraordinary three-page open letter. Professing his innocence, the former president of the Khmer Rouge regime claimed that he knew nothing of Khmer Rouge atrocities at the time they occurred, but it had just now come to his attention that the allegations were in fact true. The Khmer Rouge revolution, he revealed, was “the most radical and the most violent of all the revolutions that have been known so far.”31 “Everything has to go the trial’s way now, and there is no other way. I have to prepare myself,”32 he wrote. Two weeks later, French attorney Jacques Vergès spent four days with Khieu Samphan in Pailin, working on strategy for his eventual defense; Vergès was notorious for the way he had handled the cases of previous clients, including Nazi Gestapo Chief Klaus Barbie and the terrorist known as Carlos the Jackal.33 Soon thereafter, Samphan announced that the French publisher L’Harmattan would release his new book, The Recent History of Cambodia

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and My Successive Positions, in which he would “clarify” his claims that he was not involved in the atrocities of the Khmer Rouge regime. The book would be published in French, Khmer, and English-language editions. The Khmer Rouge leader was clearly mounting a broad-based public relations campaign, though the extent to which this would be of any assistance with respect to his potential indictment remained to be seen. By contrast, Samphan’s colleague Nuon Chea appeared to be limiting himself to periodic statements to the media. In mid-January 2004, Chea denied that there had been “millions” of deaths under the Khmer Rouge regime, but did acknowledge that “mistakes” had been made. He also made a public plea for a fair trial: “The only thing I want to beg is for the court not to be biased. But please judge according to the rule of law and religion.”34 The UN Secretary-General had been expected to release a report outlining the budget requirements for the tribunal in early February  2004, and at the same time issue a call to member states for nominations to fill the international positions on the Khmer Rouge Tribunal and urge the donor community to provide the necessary funding. However, prolonged negotiations between Karsten Herrel’s team and the Cambodian government over details of the budget delayed the completion of the report. It would soon become clear that resolving the question of the budget for the Khmer Rouge Tribunal was going to be a significant challenge for all concerned. THE BUDGET BATTLES BEGIN

In his March 31, 2003, report on the Khmer Rouge Tribunal, SecretaryGeneral Kofi Annan had pleaded with UN member states to fund the tribunal from mandatory contributions, fearing a repeat of previous instances where voluntary funding for other internationalized tribunals had created problems when pledges failed to materialize in a timely fashion.35 The General Assembly rejected the secretary-general’s recommendation and instead directed that the Khmer Rouge Tribunal trust fund be financed through voluntary contributions from member states. But another factor was also weighing on the minds of representatives from those states: the ballooning cost of international justice at other tribunals. The cumulative expenses for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were each starting to

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approach the billion-dollar mark, a fantastic sum considering the relatively small number of convictions that had been gained thus far by the two tribunals, not to mention the recurring administrative problems at the Rwanda tribunal and the unseemly spectacle unfolding in the prosecution of Slobodan Milosevic at the Yugoslav tribunal. The international community was also funding the International Court of Justice and the new International Criminal Court, as well as internationalized judicial exercises taking place in East Timor, Kosovo, and Sierra Leone. The troubled history of funding for the Special Court of Sierra Leone (SCSL) was a particularly pertinent precedent when the Group of Interested States (GIS) began to contemplate paying for the Khmer Rouge Tribunal. Of all the previous exercises in internationalized justice, the SCSL was the most similar to the proposed Khmer Rouge Tribunal.36 Although agreement on the structure and mandate of the Sierra Leone tribunal was reached between the UN and the government of Sierra Leone with admirable dispatch, requiring only six weeks of negotiations, a struggle among donor countries over the SCSL budget delayed the start of the court for more than a year. Moreover, once the court was established, it became clear that the budget projections had been underestimated, so the court had to return to the donor community for additional funding. To make matters worse, a huge chunk of the SCSL budget was spent to construct a new headquarters facility in Freetown to house the tribunal. In fact, UN Legal Counsel Hans Corell’s final official duty as Under-Secretary-General for Legal Affairs was to travel to Freetown to inaugurate the new SCSL “palace of justice” on March 10, 2004.37 All of this was very much on the minds of the GIS as they began to consider the tribunal budget that had been assembled by Karsten Herrel’s UNAKRT. Initial work on the budget had begun with the secretary-general’s March 31 report to the General Assembly. In that report, the secretarygeneral noted that although there was as yet insufficient information available for a comprehensive estimate of the costs of the tribunal, the secretariat had thus far been able to identify some $19 million in anticipated expenses.38 In a subsequent report delivered to the General Assembly one month later, the secretary-general stated, notwithstanding that not all parameters were available, it was estimated that an amount in excess of $19 million would be required for the establishment and

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operation of the Extraordinary Chambers, the Prosecutors’ Office, the coinvestigating judges, the Pre-Trial Chamber and the Office of Administration. This amount excludes provisions for the remuneration of defence counsel who might be assigned to indigent accused and the costs of prosecutorial and investigative activities, supplies and materials, printing, miscellaneous contractual services, general temporary assistance, travel of witnesses from within Cambodia and abroad, alteration and minor improvements of premises provided by the Government of Cambodia, and the cost of utilities and services for the operation of the Extraordinary Chambers and related institutions.39

Thus it was clear that the UN’s $19 million estimates from March and April 2003 were only a partial assessment of the financial requirements for the establishment and operation of the Extraordinary Chambers, and that the pending comprehensive budget estimate would be significantly higher. Unfortunately, however, this $19 million number was later seized upon and represented as a total budget estimate, purportedly as evidence of an outof-control spiraling of costs. The first attempt at a complete budget estimate for the tribunal was prepared by the Cambodian government’s Task Force. Its initial budget projected $40 million in costs over an anticipated three-year lifespan for the tribunal, to be divided roughly evenly between the Cambodian government and the United Nations.40 However, when this proposed budget was first presented to donors on October 20, 2003, they were not overly impressed. For example, the projected $1.1 million annual cost for “materials and logistics”—dubbed “office supplies” by some41—suggested to the donors that considerably more work would be required before a satisfactory budget was ready.42 During UNAKRT’s December mission to Phnom Penh, Herrel and his team came to the same conclusion. The UN officials determined that they would have to assemble an entirely new budget estimate from scratch, then negotiate the details of that budget with their Cambodian counterparts.43 Based on the information they gathered during their December mission to Cambodia, Herrel’s UNAKRT group set about constructing a comprehensive budget for the tribunal. Through January and February 2004, UNAKRT was in almost daily communication from New York with the government’s Task Force in Phnom Penh, working out the details of personnel, venues, salary scales, allocation of costs between the UN and

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Cambodia, and the other minutiae of implementation.44 On February 20, a detailed draft of the UNAKRT implementation plan was forwarded to the Cambodian government and was also distributed to interested member states at the UN. This was the signal for the pulling and hauling on the budget to begin in earnest.45 At this juncture, donors were indicating to UNAKRT that they would prefer the lion’s share of costs to be handled through the UN Trust Fund, which would be controlled by the UNappointed deputy director of administration for the Extraordinary Chambers. The Cambodian side argued that the budget should be split down the middle, with half under their control and half under the control of the UN. Several members of the donor community were expressing the view that the Cambodian government needed to demonstrate its own commitment to the process by agreeing to provide for some portion of the tribunal’s costs from its own domestic resources, rather than insisting—as it repeatedly had—that Cambodia’s share of the costs should be met entirely through donor contributions. There was also a feeling among donors that with a less than sterling system of financial controls in place within the Royal Government, the UN’s rigorous cost-accounting system would provide for more reassuring oversight of the tribunal’s monies. On March 10, 2004, Karsten Herrel returned to Cambodia with one of his UNAKRT advisors for a ten-day visit, aiming to finalize several key parameters of the tribunal with the government. Within days, the two sides were able to announce agreement on the venue. The administrative offices of the court would be located at the National Cultural Center, and the trials themselves would be held at Chaktomak Theater—the same location where the People’s Revolutionary Tribunal of 1979 had been convened. They also announced that they had arrived at a consolidated budget estimate, which would be in the range of $50 to 55 million, depending upon the salary scale for Cambodian jurists at the tribunal, which the government had not yet determined. “I think our funding proposal is very realistic,” Herrel told reporters.46 Herrel went on to say that he expected Secretary-General Annan would announce the final budget figures within two weeks and launch a formal appeal to the donor community for funds. It would soon become apparent, however, that the donor community did not agree at all with Herrel’s assessment regarding the realism of the budget. Upon his return to UN headquarters, Herrel was faced with a revolt over the budget in the Group of Interested States. Japan, which with France

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was co-chairing the GIS, led the charge. Japanese diplomats asserted that the budget was out of control, allegedly having risen from a first estimate of $19 million to a second estimate of $40 million, and was now more than $50 million.47 In a meeting of GIS members with UNAKRT on April 15, Japanese diplomats argued that the Extraordinary Chambers was “conceived as a domestic court,” and therefore extrapolations from the budgets of other internationalized tribunals were “inappropriate,” a position that French representative Jean Luc Florent quickly seconded.48 At this initial encounter between UNAKRT and the GIS, donor states questioned a wide variety of details in the draft budget, ranging from the need for alternate trial and appeal judges, the arrangements for management of UN personnel, the number and cost of witnesses that would be required, the extent to which defense counsel would be provided to indigent defendants, the technical specifications of equipment that were outlined in the budget, and numerous other items. The UNAKRT team was stunned by the ferocity of the GIS assault. Near the end of the April  15 meeting, the UN’s Warren Sach rather sharply commented that the “Secretariat could not wait indefinitely for States to indicate their positions and intentions as to which expenditures to fund, and to which degree.” 49 Herrel’s team was confident that their estimate of the tribunal costs was reasonable and prudent, and they continued to resist efforts by the GIS to whittle away at the bottom line. British Ambassador Stephen Bridges predicted that Japan and France would need to trim the budget back 10 percent before they would be satisfied.50 UNAKRT’s resistance to suggestions for budget reductions soon resulted in serious friction between the UN Secretariat and the donor community. Matters were only made worse when the UNAKRT team realized that they had missed a significant line item in the budget estimate. The world body requires that all UN personnel costs be supplemented by a hefty overhead charge—a policy that had resulted in years of difficulties at the International Criminal Tribunal for the former Yugoslavia. But Herrel’s team had neglected to include this overhead fee in their Khmer Rouge Tribunal budget, and since a substantial portion of the overall costs were for UN personnel, when they recalculated the budget with this cost added in, the total rose to some $63 million, further fueling the ire of the donor community.51 Some GIS members began to claim that the secretariat might have ulterior motives in proposing a budget the donors found so unsatisfactory. Japan’s

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Ambassador to the UN, Toshiro Ozawa, suggested that there was “speculation” among GIS members that the UN Secretariat had deliberately “feather-bedded” the Khmer Rouge Tribunal budget “in order to kill it in its present form.”52 The atmosphere in the tribunal budget battle was becoming toxic. It was not only Japan and France who had problems with the tribunal budget. In the United States, Senator Mitch McConnell was opposed to any U.S. contribution whatsoever to support the operations of the Extraordinary Chambers. In a hearing on April 8, he demanded of Secretary of State Colin Powell, “Why should U.S. taxpayers support a flawed Khmer Rouge tribunal that relies in part upon Cambodia’s broken judicial system, one that is largely incapable of delivering justice for human rights abuses committed in that country today?” “The only reason, Senator,” Secretary Powell replied, “is that it’s the only judicial game in town. I have the same concerns you have about the preponderance of justices being Cambodians who might not mete out justice in the way we would like to see it meted out,” Powell continued. “But we will have international judges on that court as well, so at least these aging defendants will be brought before a tribunal.”53 Notwithstanding continuing U.S. support for the concept of the tribunal, according to U.S. Ambassador to Cambodia Charles Ray, the United States shared the same concerns about the tribunal budget as other members of the Group of Interested States. The UN Secretariat, Ambassador Ray said on May 17, should reevaluate whether or not the proposed budget was “realistic.”54 The Cambodian government reacted to the budget battle in New York by identifying it as an opportunity to increase the government’s span of control over the tribunal. A senior official of the Cambodian government’s tribunal Task Force said privately in early June that the government was not alarmed by donor efforts to dramatically cut the tribunal budget, and that these cuts could be accommodated by replacing UN personnel with “local hires.”55 In other words, instead of international personnel working under the supervision of the UN-appointed deputy director of administration, there would be a higher proportion of international personnel among tribunal staff who would work under the supervision of the Cambodian director of administration. On June  3, Task Force Executive Secretary Sean Visoth said that donor countries were calling for the UN’s share of the tribunal budget to be cut from $50 million to $30 million, and that

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Cambodia’s share of the budget was presently estimated at $15 million.56 This would bring the total budget down to around $45 million. To reach this 40 percent reduction of the international share, according to Helen Jarvis, the GIS had identified about fifty different areas where it believed the budget could be cut.57 Reversing their earlier preference for a greater proportion of the costs of the tribunal to be borne by the UN Trust Fund, donors began to consider how they could shift some of the costs back into the Cambodian government’s share, and how that portion of the budget might be met by contributions in kind rather than in cash. One key unresolved budget issue concerned pay scales for national personnel of the court. This issue was especially acute with respect to the judges. It would be awkward for Cambodian judges paid at the going national rate of $300 to $400 per month to be sitting beside international judges being paid at the UN rate of more than $12,000 per month. $300 a month is barely enough to survive in contemporary Phnom Penh, so judges are expected to “live off the land,” as it were, charging fees for court services and accepting “gifts” from grateful (or hopeful) litigants.58 This type of behavior, of course, would be considered unseemly at the Khmer Rouge Tribunal, so higher salaries would be necessary. But how much higher? Donors were not willing to countenance raising the Cambodian pay scale to international standards, so the issue had festered, unresolved. STF Secretary Sean Visoth told an international NGO worker in July 2004 that he had discussed the salary question with two judges who were potential candidates to serve on the court, asking them if they would take the job for $5,000 per month. Both told him no.59 Still, the issue had to be dealt with before the budget could be finalized. In the end, the British Ambassador to Cambodia, Stephen Bridges, proposed to simply split the difference: Cambodian judges should be compensated at 50 percent of the base pay to be received by the international judges.60 That was the solution ultimately adopted for the initial budget, but it would not be the end of the matter. THE RAKEN AFFAIR

While the budget battle was unfolding in New York and in capitals across the globe, in Cambodia a curious incident transpired regarding several of the putative prime suspects, an incident that held portents for the tribunal

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to come. On April 5, 2004, taking advantage of a little-known provision of Cambodia’s civil law system, a group of Cambodian civil society leaders submitted a petition to the general prosecutor of Cambodia’s Court of Appeals, Henrot Raken. The plaintiffs alleged that they had been injured by Khmer Rouge leaders Nuon Chea, Khieu Samphan, and Ieng Sary, and asked that these individuals accordingly be brought to justice under the terms of Cambodia’s 1994 law on the outlawing of the Khmer Rouge. Prosecutor Raken promptly replied to the petitioners that he had previously issued just such an order—on January 13, 1995, in fact—but that implementation “had become entangled in the executive,” which had “simply pardoned them on a personal basis.” 61 These comments constituted a rather bold allegation by the general prosecutor that the “executive,” by which he meant Prime Minister Hun Sen, had interfered with the course of justice and stymied the enforcement of the law by duly constituted judicial organs. Nonetheless, Raken continued, in the interests of justice, he would issue a second such order, as requested by the petitioners. General Prosecutor Raken reasoned that since his 1995 order had not been implemented and the accused were now situated in such a manner that the court could exercise jurisdiction over them, it would be just and lawful to pursue the charges against them.62 On April 9, 2004, Raken did precisely that, transmitting an order instructing three provincial prosecutors to commence investigations against and issue arrest warrants for Nuon Chea, Khieu Samphan, and Ieng Sary, “in accordance with procedure” under the applicable laws.63 The three prosecutors—Yam Yeth of Battambang province, So Vat of Siem Reap province, and Nhoung Thol of Banteay Meanchey province—reacted with unalloyed alarm to this provocative order from their superior. Was it some kind of trick? Or a loyalty test from the ruling party? Or had the general prosecutor simply taken leave of his senses? The three prosecutors quickly conferred and came to the conclusion that it would be unwise for them to implement Raken’s order. They decided that any attempt to do so could adversely affect stability and security in the entire country, and that such a move would also be explicitly contrary to what they understood as the government’s policy on national reconciliation. In any event, this was a matter better left to the proposed Khmer Rouge Tribunal.64 Yeth, Vat, and Thol then traveled to Phnom Penh to consult with General Prosecutor Raken, informing him that they had no intention of proceeding

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against the three Khmer Rouge leaders. Raken reportedly acquiesced in the face of the united front from the three officials.65 However, in view of the fact that the provincial prosecutors recognized Raken’s directive as legal and authoritative, they also decided that they could not simply ignore it. They therefore responded to the order with several additional strategies. First, at least one of the prosecutors—Yeth—decided that he would register Raken’s order in his book of court cases, then exercise his prosecutorial discretion to refrain from pursuing that particular case on the grounds that his office had inadequate resources to undertake the necessary investigation. Prosecutor Vat later resorted to this argument when confronted by reporters asking why the order had not been carried out.66 In addition to registering the order but declining to implement it, the prosecutors decided that it might be wise to try to pass the hot potato on to another jurisdiction. One idea was to refer the case to the Phnom Penh Military Court, which had charged Mok and Duch. This approach had the advantage that the military court had already demonstrated the courage to arrest top Khmer Rouge leaders. However, it had the disadvantage that it would be illegal, since the military court has jurisdiction only over members of the Royal Armed Forces, and Nuon Chea, Khieu Samphan, and Ieng Sary—and for that matter, Mok and Duch—were not Cambodian military personnel. But since that small procedural detail had not inhibited the court from charging Mok and Duch, this approach might be worth a try, notwithstanding its manifest procedural irregularity. A second tactic was simply to await the formation of the Extraordinary Chambers and refer the case to that court.67 This idea had the advantage that since the Extraordinary Chambers did not yet exist, there was no one there to refuse the forwarded order. But it also had the disadvantage that the Extraordinary Chambers’s subject matter jurisdiction does not include the 1994 Law on the Outlawing of the Khmer Rouge, which was the basis of Raken’s order. In any case, one thing was certain: the provincial prosecutors were simply not going to act against the three terrifying Khmer Rouge leaders living in their jurisdictions. Khieu Samphan had been made aware of General Prosecutor Raken’s order by local government officials, and he publicly mocked the order for his arrest as “laughable,” accusing those behind it of having committed an “injustice” against him.68 But the matter was soon settled by Cambodia’s most authoritative source on the interpretation of law, Prime Minister Hun

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Sen. On June 5, Hun Sen declared that Raken’s order for the investigation and arrest of Nuon Chea, Khieu Samphan, and Ieng Sary on charges of violating the 1994 Law on the Outlawing of the Democratic Kampuchea Group could not be carried out, because charges against former Khmer Rouge leaders “can only be made by a coalition of Cambodian and UN judges.” 69 “They will face the tribunal,” he added. One of the petitioners, human rights activist Lao Mong Hay, promptly accused the prime minister of “interfering with the courts” by stating that the order could not be enforced.70 The deputy chairman of the tribunal Task Force, Om Yen Tieng, failed to clarify the matter by asserting that the cases of Nuon Chea, Khieu Samphan, and Ieng Sary were different than those of Mok and Duch: because the former surrendered to the government, they were not liable for prosecution under the 1994 law.71 There is, however, no such provision in the 1994 law.72 In toto, the Raken affair abundantly illustrated the widely suspected fact that some of Cambodia’s professional prosecutors either do not have a firm understanding of the laws they are pledged to enforce or, if they do understand the laws, are unwilling to enforce them. Perhaps more important, the affair also illustrated the extent to which law enforcement in Cambodia depends upon the preferences of the prime minister. RATIFYING THE UN TRIBUNAL AGREEMENT

A key element in the preparations for the Extraordinary Chambers was ratification by Cambodia’s National Assembly of the “Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea.” Until this was accomplished, the UN would not give the signal for final implementation of the tribunal to proceed. Indeed, UNAKRT’s entire implementation time line was keyed to ratification. But that agreement languished at the Permanent Committee of the vacant National Assembly for more than a year following its introduction there on June 18, 2003. The extended political stalemate following the July 2003 elections was not resolved until July 16, 2004, when the terms that the ruling party and the royalist party had agreed upon for the new coalition government were promulgated by the acting head of state. During the long political stalemate, Prime Minister Hun Sen had repeatedly stated that convening the Khmer Rouge Tribunal was one of his top

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priorities and he would pursue this objective with renewed vigor once the political deadlock had been resolved. On July 6, 2004, just prior to the finalization of the deal for the coalition government, Hun Sen declared that ratification of the UN agreement would be one of the assembly’s two top priorities when it reconvened.73 Immediately after the July 15 vote in the National Assembly to appoint the new government, National Assembly President Norodom Ranariddh echoed Hun Sen’s comments, telling reporters that the UN tribunal agreement and accession to the World Trade Organization would be the first items on the agenda.74 How long the process of ratifying the UN agreement might take, however, was another matter, because the tribunal issue confronting the assembly was more complex than a simple up or down vote on an international treaty. The terms embodied in the UN agreement differed in many substantive details from the provisions of the 2001 Law on the Extraordinary Chambers. Many amendments would be necessary to bring the earlier law into conformity with the agreement. But the Task Force for the Khmer Rouge Tribunal had decided in the summer of 2003 that it would not prepare any amendments, assuming that the agreement would simply supersede the existing law.75 Numerous interlocutors, both Cambodian and foreign, subsequently suggested to the Task Force that the UN might find this unacceptable. The Cambodian side eventually reversed itself and began the arduous process of preparing amendments to the law that would bring it into line with the agreement. On March 23, 2004, Deputy Prime Minister Sok An asked David Scheffer to sketch a set of required amendments.76 The amendments to the 2001 KRT Law were approved by the Council of Ministers on August 6, 2004, and sent on to the National Assembly on August 10.77 Two weeks later, Sok An appeared at the assembly to brief the members of the Legislative and Foreign Affairs Commissions on the legislation. The twenty-six changes to the law incorporated everything that UN Legal Counsel Hans Corell had demanded in May 2003. After an hour of presentation by Sok An, another two hours of discussion among the members, and two more amendments, it was agreed to send the package back to the Permanent Commission of the National Assembly.78 Upon its arrival at the Permanent Commission, however, a fracas broke out.79 Some members wanted the bills sent to the full assembly for debate. The chair of the Legislative Commission, Ek Sam Ol, thought the legislation needed more work and wanted it sent back to the Task Force and Jurist Council for

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revisions. His view ultimately prevailed. Task Force Secretary Sean Visoth insisted that it was a minor matter, simply a question of a few spelling errors.80 Ek Sam Ol estimated that it should not take the government more than four or five days to make the necessary changes.81 In the event, it would require more than five weeks to correct the purported “spelling errors”—and to add three more new amendments to the law. Finally, in October  2004, the government brought three documents before the National Assembly: the UN agreement, enabling legislation for ratification of the agreement, and the amended version of the 2001 Cambodian Law on the Extraordinary Chambers.82 Ironically, the Law on the Ratification of the Agreement was dated June 17, 2003—sixteen months prior to its being brought before the assembly—and yet the third of its very brief three articles stated, “This law is declared as urgent.”83 From here on out, however, progress would be speedy. The Law on Ratification was adopted unanimously on October 4.84 The next day the assembly debated the thirty-one amendments to the 2001 law and then adopted the revised law by a vote of 96 to 2.85 Over the next several weeks, the UN agreement, the Law on Ratification, and the amended KRT Law wound their way through the Senate and the Constitutional Council before ending up on the desk of Acting Head of State Chea Sim. He promulgated the amended law on October 27.86 The acting head of state had already ratified the agreement on October  19, and Foreign Minister Hor Nam Hong signed the Instrument of Ratification for it on the same day.87 On November 16, 2004, Sok An transmitted to the United Nations the promulgated Law Approving the UN Agreement,88 a copy of the signed agreement, and the Instrument of Ratification. On the very same day, the United Nations acknowledged receipt of Cambodia’s Instrument of Ratification of the Agreement by issuing an addendum to a previous report by the secretary-general.89 The addendum concluded with the comment, “As the Agreement is now in force, the Secretary-General is preparing for full implementation and will keep Member States informed of progress achieved.”90 It seemed that a major milestone in the long journey of more than seven years had been reached at last. But it was not to be. Thirteen days after announcing that the UN-Cambodia Agreement on the Khmer Rouge Tribunal was in force, the UN issued a new version of the document, A/59/432/Add.1, with the document number followed by an asterisk signifying that it had been “reissued for technical reasons.”91 The

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new version replaced the sentence asserting that the agreement was “in force” with two new paragraphs stating that the UN had not yet notified Cambodia that the UN’s legal requirements for entry into force were complete, and would do so only when sufficient money was on hand to fund the court’s personnel and operations for the first year, with sufficient pledges of funding to cover two additional years. The UN now deemed funding to be a “legal requirement.” This represented a rare instance of the United Nations Secretariat straying from strict classical legalism into the realm of strategic legalism, inventing a new legal rule in order to achieve a policy objective. As human rights campaigner Gregory Stanton put it at the time, “That was not a legal requirement for entry into force that was included in the agreement.”92 FINDING FUNDING

In October 2004, the secretary-general issued a report updating member states on progress in preparations for the tribunal.93 It included a new budget estimate of $57 million, which was very close to the 10 percent reduction that Ambassador Bridges had predicted would be required to pacify the budget-hawk donors. The report also noted that Australia had committed US$2.1 million to the tribunal “for its planned three years of operation,” while France and Japan had pledged US$1 million and US$3 million respectively for the first year of the court’s work.94 Kofi Annan concluded the report by informing member states that he would get back to them when the budget calculations had been finalized. Meanwhile, the Cambodian government was agitating for funds to defray Cambodia’s anticipated tribunal-related expenditures.95 The annual Consultative Group meeting was the forum where donors of development aid to Cambodia met to discuss priorities and make pledges for the coming year. The 2004 meeting was scheduled for December 6 and 7, and on the face of it, would seem to have been the ideal occasion for Cambodia to appeal for support for its tribunal budget. Human rights campaigner Thun Saray suggested that the government “call on donors and aid communities to grant funds for Khmer Rouge trials at the [Consultative Group] during the meeting.”96 But the government had different ideas. The Khmer Rouge Tribunal “is seen as a political issue on its own,” explained an official of the government tribunal Task Force.97 The government was determined to treat

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the tribunal in isolation from ordinary development questions, as a uniquely sensitive political matter. The day after the Consultative Group meeting wrapped up, Karsten Herrel’s replacement, newly appointed UN Coordinator for the Khmer Rouge Tribunal Mohammed Said, arrived in Phnom Penh aiming to finalize the budget and a few other outstanding issues.98 Instead of being taken to the riverfront to inspect the Chaktomak Theater—the previously agreed venue for the court—the UN delegation instead was driven out of town into Kampong Speu province, to the headquarters of the Royal Cambodian Army at Kambol. The surprised and somewhat nonplussed delegation was informed that for security reasons, the government had decided that this new location would be preferable to the previously agreed-upon site.99 As a bonus, this new venue would save nearly $1 million in construction costs that would have been required at the National Cultural Center in the city center, where the tribunal offices were to be based.100 This would bring the overall budget down to $56.2 million. After a brief and reportedly stormy internal consultation with his team, Mohammed Said agreed to the Cambodian proposal. With the budget finalized, Secretary-General Kofi Annan wasted no time in moving forward. On December 17, just days after the UN team returned to New York, Annan sent a pledging form to UN member states, declaring that he would set a date for a pledging conference early in the coming year.101 Up to that point, however, only three countries had indicated they intended to provide financing for the tribunal. A total of $6.1 million had been either provided or pledged by Australia, Japan, and France.102 The United States, which had exerted so much effort to bring the process to this juncture, had been saddled with congressional prohibition on funding for the tribunal in 2005.103 Thus, with one major potential donor sidelined and three key supporters of the process already having committed, scarcely 10 percent of the necessary funding was within sight. Soon, however, Japanese diplomats began to send signals that they were preparing to announce an additional contribution to the tribunal budget with the intent of “kick-starting the tribunal.”104 Task Force Secretary Sean Visoth claimed in January 2005 that Japan intended to fund fully half of the tribunal’s $56 million cost.105 On February 1, 2005, Japan’s Diet approved a major contribution, and a week later the Japanese Ambassador to Cambodia, Fumiaki Takahashi, confirmed that Japan would give a total of $21.5

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million.106 This dramatic announcement had the potential to create real momentum in the search for funding ahead of the March 28 pledging conference in New York.107 In the run-up to the conference, other states began to make pledges. On March 25, Canada announced that it would chip in $1.64 million.108 At the pledging conference, donors came forward with $38.48 million in contributions and pledges toward the UN’s share of $43 million.109 In addition to the previously announced contributions from Japan, France, Australia, and Canada, the French increased their contribution by $3.8 million. Germany, the Netherlands, the United Kingdom, and Norway made pledges of $1 million or more, while Denmark, Luxembourg, Austria, Sweden, and the Republic of Korea offered lesser amounts. Secretary-General Annan appeared surprised at the total take. “I think we can get it started,” he said after the conference.110 “It has exceeded all my expectations. I’m sure we will be able to raise the balance.”111 Some expected donors were not yet ready to announce contributions at the pledging conference, including New Zealand and the European Union, but were expected to make their pledges known in due course to help meet the $4.5 million shortfall.112 In early April, Belgium pledged $193,500,113 and a couple of weeks later, the European Commission announced a pledge of $1 million.114 The UN was nearing its funding goal for the tribunal. At UN headquarters, several interested member states were beginning to feel a sense of urgency on the tribunal project. On the morning of April 15, the representatives of Australia, France, and Japan appeared in the office of UN Comptroller Warren Sach to deliver a demarche. They explained to Sach that, by virtue of Japan’s large contribution, more than enough funding was on hand to cover the expenses of the first year of the tribunal. Given the pledges of other member states, nearly enough funding had been promised to account for the second and third years of the court. Moreover, it was known that additional pledges were in the pipeline, working their way through legislative and bureaucratic processes, and that these further contributions would bring the funding to the required levels. Consequently, the three member states were urging the secretary-general to declare that the legal requirements for the entry into force of the UN-Cambodia tribunal agreement had been met, and to proceed forthwith in establishing the Extraordinary Chambers. The three member states followed up by sending a letter to the secretary-general reiterating the request.115

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On April 20, Sach wrote to the secretary-general’s Chief of Staff, Mark Malloch Brown, reviewing the demarche from the three member states and indicating that he concurred with their suggested course of action.116 The Office of Legal Affairs prepared a letter notifying the Cambodian government that the UN’s legal requirements had been met. The letter was signed by the secretary-general on April 28 and delivered to the permanent representative of Cambodia the same day.117 In accordance with Article 32 of the UN-Cambodia Agreement on the tribunal, that agreement came into force the following day. The Cambodians responded with enthusiasm. Deputy Prime Minister Sok An issued a statement welcoming the decision by the secretary-general and pledging Cambodia’s expeditious cooperation in setting up the tribunal. “I can assure that the Royal Government of Cambodia will do our utmost to ensure the Extraordinary Chambers may begin to function as soon as possible, and that they attain the level of international standards that we have both agreed on and that are needed to address the needs for justice of the Cambodian people and all humanity.”118 There remained, however, the lingering issue of funding Cambodia’s portion of the budget. Sok An took advantage of the occasion to remind the international community that Cambodia needed $13.3 million for this purpose. He pointed out that

FIGURE 5.1. Helen Jarvis and David Scheffer on the Mekong, March 2004

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Cambodia was contributing $1.5 million in cash, along with $5.2 million of in-kind expenses outside the budget. That added up to $6.7 million, or more than 10 percent of the total expenses.119 The issue of funding the Cambodian portion of tribunal costs would bedevil Cambodia, the UN, and the donors for years to come. Over the coming months, however, a bewildering array of technical tasks required attention before the tribunal could come into existence. The pieces were starting to fall into place. With the establishment of UNAKRT, there was now a dedicated mechanism within the UN to provide a locus for tribunal preparations. With the Secretariat of the Task Force for the Khmer Rouge Trials, Cambodia also had a full-time cadre focused on preparing for the tribunal. The donor community had shown its commitment to the project by providing or pledging the funding required to launch the tribunal. Many key decisions would have to be made, and many players would demand a say in those decisions. Much remained to be agreed upon, and it would take time to work out all of the details of this wholly new approach to hybrid justice.

Chapter Six

TRANSITIONAL JUSTICE

With the UN-Cambodia Agreement on the Khmer Rouge Tribunal finally declared to be “in force,” the real work of setting up the court began in earnest. There was the question of where the tribunal would be seated, a location that would have to accommodate offices for upward of 300 staff, one or more courtrooms, a fleet of vehicles, and other aspects of the court’s physical infrastructure. Then there was the matter of selecting, hiring, and training a large assortment of personnel, from carpenters, electricians, drivers, cooks, housekeepers, and groundskeepers to archivists, librarians, information system technicians, travel clerks, security guards, translators, interpreters, financial and human resources specialists, and investigators. And of course, in a country that was short on legal talent, the tribunal would need many legal clerks, prosecutors, investigating judges, and pretrial, trial, and appeals judges. There were also a number of technical issues still to be hashed out, including supplemental agreements between Cambodia and the UN on matters such as safety and security, and facilities management. And, of course, there was the nagging matter of how Cambodia was going to pay for its share of the budget. A SEAT FOR THE COURT

A key issue was the venue for the court. This had proven to be challenging and contentious from the very beginning of UNAKRT’s work in Cambodia.

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As early as mid-2003, the Cambodian government already had a prime candidate for a site to house the tribunal.1 During the first UNAKRT mission in December 2003, the team grappled with the question of where the court would be located. Om Yen Tieng of the government’s tribunal Task Force proposed that the UN should pay Cambodia $10 million for the use of a partly constructed conference center on the Chroy Changva peninsula, across the Tonle Sap River from the Royal Palace. One member of the UNAKRT team was Philip Mitnick, the Chief of General Services for the International Criminal Tribunal for the former Yugoslavia. Mitnick’s assessment of the conference center was that it was improperly designed for use as a tribunal and that the construction quality was wholly substandard. Moreover, the fact that it had been standing partly built and exposed to the elements for years meant that it had deteriorated dramatically and had become dangerous. In his view, it was “hopeless.” The only solution would be to tear it down and start over from scratch. But building another “Palace of Justice,” like the one the UN had constructed in Freetown for the Special Court for Sierra Leone, was not in the cards for Cambodia.2 The Task Force showed Mitnick several other potential venue sites. The offices of the Mekong River Commission were “nice enough,” but “too small.” The Chaktomak Theater was “way too small.” Some buildings on Russian Boulevard near the Council of Ministers were also too small. The military base out past the airport, at Kambol, was big enough, but too far away and “not secure.” For Mitnick, the bottom line was that the Task Force had nothing acceptable to offer for a tribunal venue, so this issue was shaping up to be a problem. UNAKRT Coordinator Karsten Herrel concluded that the choices that had been offered by the Task Force were “absurd.” He was leaning toward the option of simply renting the whole of the Mi Casa Hotel, or perhaps a wing of the Cambodiana Hotel. The Task Force, however, was not prepared to take “no” for an answer. For one thing, the symbolism of the Chaktomak Theater was potent for the Cambodian side. It was there, after all, that the 1979 People’s Revolutionary Tribunal had sentenced Pol Pot and Ieng Sary to death for genocide. The Task Force zeroed in on the theater as a prime candidate. It had a seating capacity of 570 in the auditorium, rooms for judges’ chambers, and sufficient space for the necessary technical equipment, but where could the offices for 300 staffers be located? Herrel’s idea of the Mi Casa Hotel would certainly work, given that it is directly adjacent to the Chaktomak Theater,

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but leasing an entire luxury hotel for three years might be prohibitively expensive. The same advantages and disadvantages would obtain for the Cambodiana Hotel, which was the next structure south on Sisowath Quay from the Mi Casa. Someone at the Task Force then stumbled upon the idea of the National Cultural Center, four blocks south of the Chaktomak Theater and across the street from the Buddhist Institute. It would require significant construction to build enough offices, but the site was relatively close to the theater, it had plenty of space, and best of all, the land was already controlled by the government. The plan began to congeal. When the UNAKRT team returned to Cambodia in March 2004 for another series of working sessions on tribunal planning, the Cambodians were ready for a hard sell on the Chaktomak-National Cultural Center combination. It did not take long for their proposal to prevail. By March 19, it had been decided, and Sean Visoth was able to tell a visiting delegation from the International NGO Working Group that the Khmer Rouge Tribunal venue would be the Chaktomak Theater, with staff offices at the National Cultural Center.3 The plan to go with these two sites was not formally announced by the UN until October, when the secretary-general issued a report on progress in the tribunal preparations.4 By October, however, the Cambodians were having second thoughts. By this time, an Extraordinary Chambers Security Commission had been established to oversee security matters for the tribunal.5 Among the first orders of business was planning to secure the premises. When the commission leadership looked at the planned venues, they quickly realized that they were faced with a daunting challenge. Chaktomak Theater was a block from the Royal Palace, less than a block from the Ministries of Justice and Foreign Affairs, and directly across the street from the Ministry of Cults and Religion. Moreover, it was on Sisowath Quay, a principal thoroughfare in central Phnom Penh. Adequate control of vehicular traffic in the immediate vicinity of the theater would be tremendously disruptive. Things weren’t much better at the National Cultural Center, which was across the street from the Buddhist Institute and one door down from the site of the new National Assembly, which was then under construction. Both sites looked seriously problematic from the security standpoint. As is usually the case with difficult decisions in Cambodia, this went straight to the top. According to Helen Jarvis, Prime Minister Hun Sen made the decision in November.6 The tribunal venue was moved to the

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Kambol military base, 17 kilometers to the west. The Task Force also decided not to immediately reveal this decision to their UN partners. Thus, when a UNAKRT delegation led by Mohammed Said arrived for what were planned as final consultations in December 2004, they were stunned to be taken directly from the airport on a tour of the unilaterally relocated venue.7 Nonetheless, Said made an executive decision and agreed with the new venue plan that had been devised by the Cambodians.8 He also agreed to publicly announce this decision before he had the opportunity to report on his mission to the secretary-general.9 The decision to move the tribunal venue to the military base soon aroused controversy with NGOs. Dr. Kek Galabru, head of one of Cambodia’s leading human rights organizations, criticized the relocation, saying that the new site might deter some witnesses from testifying before the tribunal. “Cambodians are so afraid of the military police, or soldiers, because they aren’t there to protect you,” she said.10 The Documentation Center’s Youk Chhang agreed: “People are afraid of men in uniform. It’s threatening.”11 Others went further. James Goldston of the Open Society Justice Initiative wrote directly to UN Legal Counsel Nicholas Michel and Controller Warren Sach, delivering a memorandum outlining the reasons he believed it would be a mistake to seat the tribunal at the military base.12 Notwithstanding Mohammed Said’s agreement in Phnom Penh, back at the UN, the venue issue was far from settled. In January, UNAKRT dispatched Philip Mitnick to Cambodia to take a second look at the military base.13 Internally, the UN Secretariat remained undecided about the Cambodian proposal and unable to achieve consensus. Finally, in June, it was determined that the matter should be brought before the Group of Interested States in order to obtain political cover for whatever decision would ultimately be made. On June 30, the GIS met at the UN, and after a briefing by the UNAKRT team, agreed to the relocation of the tribunal venue, under three conditions.14 First, the tribunal portion of the base must be completely fenced off from the areas that would remain in use by the military. Second, the tribunal portion of the facility must have separate entrances from the military portions of the facility. Finally, the government must arrange public transportation from downtown Phnom Penh to the tribunal site to help facilitate public attendance at the trials. In short order the Cambodian side accepted the new conditions, and a little more than six months later, the premises at Kambol were handed over

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to officers of the court. On February 9, 2006, in front of an audience of diplomats and journalists, the offices of the Khmer Rouge Tribunal were formally inaugurated. As telephone technicians scurried about, working to provide a rudimentary communications capability to the new court, Director of Administration Sean Visoth and Deputy Director Michelle Lee lauded a major milestone in the already decade-long process. “We can now say clearly that we have moved from the planning phase into the actual establishment of the Extraordinary Chambers in the Courts of Cambodia or ECCC,” they declared.15 They went on to promise that the senior legal officers of the court would soon be revealed. “In the legal and judicial area, the final stages of appointing both Cambodian and international judges, co-prosecutors and co-investigating judges are well under way, and we would expect to be able to announce their names shortly.”16 STAFFING THE EXTRAORDINARY CHAMBERS

The Secretariat of the Task Force (STF) had initially estimated that 197 personnel would be required to staff the Extraordinary Chambers, although this did not include security personnel.17 Of the 197, 48 would staff the Office of Administration (director, deputy, office staff, finance, registry, communications, detention, etc.), 76 would staff the Logistics Office (information, communications, translation, transport, reprographics, etc.), and 73 would staff the chambers themselves. The STF calculated that the Trial Chamber and the Appeals Chamber would require a total of 27 judges, investigating judges, and prosecutors, apportioned between Cambodians and internationals according to the Law on the Extraordinary Chambers and the UN-Cambodia Agreement on the tribunal. In December 2003, Karsten Herrel traveled to Phnom Penh to work with the STF on technical preparations for the court, starting with staffing questions. Herrel brought his own proposed staffing table, divided into two columns marked “International” and “Local,” with all the positions allocated to one side or the other.18 The Cambodians were mystified by this approach. As Helen Jarvis recalled, “We assumed it would be worked out based on who was available locally, but he came with every single position already pre-defined.”19 In the information technology category, for example, UNAKRT had specified that all of the personnel for the court would be internationals, despite the fact that capable nationals were available. After

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some discussion, the motivation for UNAKRT’s apparently preemptive approach to assigning positions became clear: “It turned out that the reason was because they wanted to get a budget.”20 Finalizing the budget for the court was a top priority for UNAKRT. UNAKRT and STF worked together to refine their initial estimates and reorganize the division of labor among nationals and internationals, concluding that more than 300 personnel would be required, about one third international and two thirds Cambodian. That estimate was later trimmed by the GIS in consultation with UNAKRT and the STF. The final preliminary staffing chart indicated that the Extraordinary Chambers would be staffed by 219 personnel in Year 1 (60 internationals and 159 Cambodians), 279 in Year 2 (78 internationals and 201 Cambodians), and 299 in Year 3 (86 internationals and 213 Cambodians).21 The bulk of these staffers would be support personnel, such as security guards, information systems managers, the transportation unit, maintenance people, and the like. A significant portion of the tribunal staff, however, would have substantive roles in the trials, including judges, prosecutors, investigating judges, senior legal advisors, law clerks, and the senior officials of the Office of Administration.22 This would include fifteen Cambodians with the rank of judge (including trial judges, appellate judges, the co-investigating judge, the co-prosecutor, the deputy co-prosecutor, judges of the Pre-Trial Chamber, and reserve judges), sixteen legal clerks of various descriptions, and one legal officer in the Office of Administration. The senior international legal staff would include sixteen individuals with the rank of judge, three senior legal advisors, and nine legal clerks. Thus, a total of sixty individuals— fully one-fifth of the entire tribunal staff—would be legal professionals. Moreover, these estimates did not take into account defense counsel, who would also be officers of the court. This was a lot of specialists in international law for a country like Cambodia, where the ranks of the legal profession were thin to begin with, and very few among those had any training to speak of in international humanitarian law or international criminal law.23 Sources at the Ministry of Justice have suggested that as of 2005, Cambodia had approximately 200 practicing judges and prosecutors, with another fifty in training.24 According to Ministry of Justice records, however, there were only 120 sitting judges in Cambodia, and their credentials were quite low. More than half of Cambodia’s judges had never graduated

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from high school. Of all the judges, the Council of Ministers asserted that approximately forty had either bachelor’s or master’s degrees at law. Ministry of Justice records, however, suggest that only fifteen Cambodian judges possessed actual university law degrees. Whether the real number was closer to fifteen or to forty, most of these law degrees were of Soviet vintage, from schools in the Ukraine, Kazakhstan, and East Germany. Of the remaining roster of sitting judges, the overwhelming majority had no formal legal training, beyond perhaps a few seminars and workshops over the previous decade or so. In addition to the sitting judges, Cambodia had about fifty-five prosecutors, who also carry the rank of judge. But fewer than ten of them had ever attended law school, and more than half of the prosecutors had not graduated from high school. Cambodia did, at this juncture, have some 250 lawyers with formal legal training, that is, legal professionals with either a bachelor’s degree in law or some higher credential. But the roster of judges overlapped only very slightly with the roster of trained lawyers. Given this shallow bench of legal talent in Cambodia, particularly in the highly specialized field of international criminal law, it was bound to be a difficult challenge for the government to come up with thirty or more competent legal professionals to staff the Extraordinary Chambers. Of course, it was theoretically possible to attempt to recruit legal staff from among Cambodians who had migrated overseas during the previous quarter century, but top policy makers had ruled out this option early on.25 Another important factor entering the decision calculus was the matter of political reliability, and in the eyes of the ruling party, this requirement eliminated overseas Cambodians from consideration. It also significantly trimmed the number of lawyers already in Cambodia who might be considered qualified for sensitive posts on the Khmer Rouge Tribunal. Speculation about who the government would appoint to the tribunal consequently grew more intense with each passing month as preparations for the Extraordinary Chambers became ever more elaborate and detailed. Who would the government choose? It was important to keep in mind, as Sean Visoth expressed it, that “the judiciary in Cambodia is not based on professionalism, not based on meritocracy, but on a system of patronage. This is not a secret.”26 Given the Byzantine web of interests and factions in the ruling Cambodian People’s Party, selecting the key personnel for the

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court was bound to be a complex task. “First you must check the people in terms of character, legal background, loyalty, honesty, and represent each faction,” explained Visoth.27 For example, “some leaders of the current regime came from the Khmer Rouge cadre, some of the officials, so they think maybe they must have a say in this process, too.”28 Finally, in late June 2004, someone connected to the government’s tribunal Task Force leaked a document listing eighteen Cambodian candidates for top judicial positions on the tribunal.29 A little more than a week later, a source at the Supreme Council of the Magistracy (SCM)—the body with the statutory authority to actually appoint the judges of the Extraordinary Chambers—leaked a different list, showing twenty-five Cambodian candidates.30 The timing of these two leaks suggested that a struggle was in progress between different factions of the ruling party over who would control the proceedings of the Extraordinary Chambers. The two lists differed substantially, insofar as more than half of the names on the STF list did not appear on the SCM list. But the lists did have some important commonalities. The general prosecutor of the Court of Appeals, Henrot Raken, who in April 2004 made a valiant if quixotic attempt to enforce the law against senior Khmer Rouge leaders, appeared on both lists. Another commonality was Ly Vuoch Leng, who was president of the Court of Appeals and a senior party leader. Both lists also included Dith Munty, who was (and still is) the president of Cambodia’s Supreme Court, slated to sit in and presumably chair the Appeals Chamber of the Extraordinary Chambers. Rumors had been circulating literally for years that Dith Munty would be tapped to oversee the Khmer Rouge Tribunal. On the face of it, he might be considered well qualified for such a role. Possession of a bachelor’s degree at law put him among the elite of Cambodian judges, all the more so in that it is an antebellum degree. In addition to his duties as president and chief justice of Cambodia’s Supreme Court, he is chairman of the State Council for Judicial System Reform. Over the years, Munty held many sensitive government posts, including a stint as foreign minister in the 1980s. Importantly, Munty was on the ruling party’s highest policy-making body, the twenty-one-member CPP Standing Committee, and more importantly yet, he was also a member of the Standing Committee’s seven-member Permanent Committee. All of this made him a core member of the ruling party, exactly the kind of person the powers that be would want in place to ensure

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that nothing went amiss during the course of the trials. But Munty’s past history of involvement with Khmer Rouge matters called into question his fitness to sit as a judge on the Extraordinary Chambers. In 1979, Munty served as defense attorney for Pol Pot and Ieng Sary at the People’s Revolutionary Tribunal.31 Prior to that trial, he submitted an affidavit into evidence for the tribunal accusing his own clients of genocide.32 At best, this is an ethically questionable approach to representing a client. Beyond the basic ethics issue, Munty’s participation in the 1979 trial rendered him unfit for participation in the Extraordinary Chambers, according to international standards for judicial personnel in internationalized criminal proceedings. This was so by virtue of the fact that he had previously been involved in a case that would come before the court. If we assess “international standards” by reference to the Statute of the International Criminal Court, a judge cannot participate in any case “in which his or her impartiality might reasonably be doubted on any ground.” Applied at the nomination stage to an international or “hybrid” body, this principle would, for example, rule out a candidate who was previously involved in any capacity in a case at the national level involving a person likely to be investigated or prosecuted by the tribunal in question. . . . The ICC Rules of Procedure and Evidence add that a judge’s impartiality may be called into question if he or she previously performed functions “during which he or she could be expected to have formed an opinion on the case in question, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned.”33

Given that the case of Ieng Sary was almost certain to come before the Extraordinary Chambers and that Ieng Sary had been Munty’s client in the People’s Revolutionary Tribunal, this would have appeared to “rule out” Munty’s participation in the Khmer Rouge Tribunal. Moreover, there was no question that Munty had “formed an opinion” regarding the culpability of senior Khmer Rouge leaders. In his witness statement to the People’s Revolutionary Tribunal, Munty wrote that The Khmer Rouge soldiers were people who had come straight out of the forests. They did not know how to distinguish between good and evil. . . . The Pol Pot-Ieng Sary clique uses the policy of “divide and conquer.” Angkar is the incarnation of

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an absolute and arbitrary militarist power exercised by the Khmer Rouge. They had the right of life and death over the people. . . . All modern goods were confiscated: bicycles, radios, watches, bracelets. All means of production belonged to the communists. . . . The Khmer Rouge broke off all relationships of children with their parents, between spouses, between brothers and sisters, and even between neighbors. . . . The Khmer Rouge despised all the traditions, manners, and customs of our people. They destroyed and made prisons out of the pagodas and temples, and they made the monks abandon their robes. . . . Executions were frequent. Every night, two or three “new” people were called to a meeting and disappeared without a trace. . . . Village chiefs who made up officialdom were selected from ignorant people who, seeking to maintain their authority, acted out of an excess of zeal. . . . The killing was done in stages: at first the military personnel and police officers; next came the turn of the civil servants, intellectuals, technical people, doctors, teachers, and professors; then it was the turn of the students and school children.34

Though Munty’s statement from the immediate aftermath of the Khmer Rouge regime accords closely with what scholars have found in the years since, it also clearly suggests that he long ago had formed an opinion about the Khmer Rouge and its leadership. This conflict of interest, augmented by the fact that Munty was said to have lost thirty-eight family members during the Khmer Rouge regime, could potentially provide a lucrative target for the defense to challenge his objectivity at the Extraordinary Chambers. However, it appeared that the criterion of political reliability could trump all other considerations in the opaque process by which Cambodian nominees to the Khmer Rouge Tribunal were to be selected. Many of the names on the lists of candidates leaked by the Task Force and the SCM aroused deep concern within the NGO community. A scathing review in the vernacular newspaper Moneaksekar Khmer (Khmer conscience) cited “law observers” in arguing that most of the proposed candidates were “generally notorious.”35 The article went on to call out some of the candidates by name, alleging various types of misbehavior such as “colluding with criminals” or involvement in land grabbing. It also alleged that all of the candidates reported directly to Supreme Court President Dith Munty or Appeals Court President Ly Vouch Leng, and therefore were under the control of key ruling party cadres. Similar allegations echoed in Phnom Penh’s English-language press.36

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In May, Pierre-Richard Prosper, the U.S. Ambassador-at-Large for War Crimes Issues, arrived in Phnom Penh. His mission was to press the government for transparency in the selection of tribunal judges. Prosper told reporters that the United States was giving “our best advice, what steps they could take to help insure that this process meets international standards because if it does not meet the standards of basic fundamental fairness and free of corruption, then we cannot be involved.”37 Asked about Prosper’s comments on transparency of the judicial selection process, the Task Force’s Helen Jarvis could only say, “Things will be announced in due course.”38 In calling for transparency in the KRT process, Prosper was echoing local NGOs, who had been demanding that the government provide more information to the public on how it would go about selecting personnel for the tribunal. An April press release from the Cambodian Human Rights Action Committee (CHRAC) demanded “international standards” for the Khmer Rouge Tribunal process. “Recruitment, selection and appointment of Cambodian judges, prosecutors and staff should be objective, fair and transparent, with clear criteria.”39 The NGOs kept up the drumbeat. “Choosing the judges is most important for the Khmer Rouge Tribunal,” said Ouk Vandeth, director of Legal Aid of Cambodia. “Cambodian people want to be confident in the court, so if the names of the judges are secret, what is transparent?”40 In August, a press release from the CHRAC complained that a plea from the committee to the government for transparency in judge selection one year earlier had been ignored. “The government has not released a list of the candidates to be considered, the criteria by which they will be evaluated, or information about the process and timeframe for recruitment and selection.” 41 The CHRAC press release included an extensive list of qualifications that it believed should be required of candidates who were to serve as judges on the tribunal. Yet another CHRAC press release in November noted that the United Nations had published the criteria it used to short-list international tribunal judge candidates as well as the names of the finalists, and urged the government to do the same.42 Helen Jarvis of the government’s tribunal Task Force responded that “The Cambodia criteria have been developed in a more detailed manner and have not yet been released. But it will be released, hopefully within a short period of time.” 43 International NGOs also expressed concerns about how the judge selection process was unfolding on the Cambodian side. The Open Society

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Justice Initiative (OSJI) noted that Deputy Prime Minister Sok An had pledged, “We are currently drawing up detailed criteria for the selection of the best possible individuals for appointment to these highly trusted positions.” 44 Transparency in this process was crucial to credibility of the court, OSJI insisted: “The government should publish these criteria as soon as possible, and well in advance of the actual selection.” 45 Some other international NGOs were far more critical, with Amnesty International rejecting the process entirely: “Serious flaws remained which threatened the integrity of the legal process and set a dangerous precedent for other future international or ‘mixed’ tribunals.” 46 Of the eighteen names of potential ECCC judicial candidates on the list leaked by the Task Force in June  2004, only six would eventually be appointed to positions at the court. Similarly, of the twenty-five names on the list leaked by the Supreme Council of the Magistracy, only eight would become principals at the court, although one more was eventually brought on to serve as an assistant national prosecutor. The Task Force list and the SCM list shared just eight names in common, and of those, only four ended up serving any role at the court. All of this suggests that the factional pulling and hauling in those two years between the initial leaking of the lists and the final selections of ECCC officials must have been extremely intense. Neither Dith Munty nor Ly Vuoch Leng nor Henrot Raken would be a finalist for a position at the ECCC. In April 2006, officials at the Supreme Council of the Magistracy were scrambling to finalize the list of national judges and prosecutors for the Khmer Rouge Tribunal.47 Early that month, it was still unclear who the SCM would choose to sit in the Pre-Trial Chamber. Yar Narin was still listed as a candidate for judge of the Trial Chamber, while Yet Chakriya and Thong Ol were still candidates to sit as judges in the Supreme Chamber. Din Sivuthy and In Van Vibol were the contenders for the post of reserve national co-investigating judge. By the third week of April, the SCM was getting closer to a final list. The Pre-Trial Chamber had been sorted out. Yar Narin had been moved from the Trial Chamber to the Supreme Chamber. Yet Chakriya and Thong Ol had been dropped from consideration for the Supreme Chamber, and Ol had replaced In Van Vibol as a contender for reserve national co-investigating judge, while Chakriya had joined Chuon Sun Leng and Sok Kalyan as candidates for deputy national co-prosecutor. Only a matter of weeks remained before the international judges and

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international co-prosecutor would arrive to begin work, and the SCM wasn’t finished with the selections yet. But the SCM need not have worried; in fact, the list had already been finalized. The previous month, on March 23, Sok An had sent a memo to Hun Sen listing the final selections for senior national appointments to the Khmer Rouge Tribunal. There was only one remaining decision to make; should Din Sivuthy or Thong Ol be appointed as the reserve national co-investigating judge? Hun Sen chose Thong Ol, and approved the remainder of Sok An’s list on March 24, 2006. The national contingent of judges and prosecutors for the Khmer Rouge Tribunal was now in place. The prime minister’s list apparently made its way to the Supreme Council of the Magistracy by early May, whereupon the SCM list was brought into alignment with the government’s decision. The final list of national candidates for senior ECCC positions included many of the crème de la crème of Cambodian jurists, but several others were lacking formal professional credentials.48 Prak Kimsan, slated to preside over the Pre-Trial Chamber and previously a judge of Cambodia’s Supreme Court, had never attended law school, aside from a few certificates attesting to brief training seminars. Similarly, General Ney Thol was also assigned to the Pre-Trial Chamber and was the long-standing president of the Phnom Penh Military Court, but had never attended law school, except for short training courses. Queried by journalists about his credentials to sit at the ECCC, Ney Thol famously replied, “The most important thing is selfconfidence.” 49 Thong Ol would become the reserve national co-investigating judge at the ECCC, drawing on his previous experience as a judge of the Phnom Penh and Kampong Cham courts, but with no formal legal training. Chuon Sun Leng, who was serving as deputy prosecutor general of the Supreme Court and was appointed as the reserve national co-prosecutor, had attended law school but had not yet been awarded a degree. In a press conference announcing the judicial appointments to the Khmer Rouge Tribunal, it was left to the UN’s Michelle Lee to describe the “criteria” that had been applied to selecting Cambodian judges. There were two so-called “mandatory” criteria: that the judges have no criminal records and that they be “free from any extra influences, inducements, pressures, threats or interference, direct or indirect, from any quarter for any reason.”50 Further, Lee said, “In selecting the Cambodian judges, the Supreme Council of the Magistracy followed guidelines for interpreting and applying

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these mandatory criteria, such as seeking a balance between experience and formal education.”51 Finally, she added, there were also a number of “desirable” criteria, including language ability, gender and ethnic representation, ability to operate in a modern court environment, and intercultural sensitivity. The diplomatic community in Phnom Penh had varying responses to the list of Cambodian officials appointed to the tribunal. The Japanese view was that it was important for the international community to help secure the independence and impartiality of the court, and the best way to do that was with a hands-off policy toward judicial selections. “We must be neutral, we cannot intervene,” explained Japan’s Deputy Chief of Mission Susumu Inoue.52 When the final list was made public, however, the Japanese ambassador was so concerned about some of the nominees that he complained directly to Prime Minister Hun Sen.53 The British Ambassador, Stephen Bridges, had already made it clear that his government knew the Cambodian appointees to the court would not be perfect, and that the international community as a whole needed “to make the best of it.” “This is what we have, and we have to make this thing work,” Bridges said.54 The United States, in contrast, took a more forward-leaning approach, despite (or perhaps because of) the fact that it was legislatively prohibited from providing financial support to the tribunal. When the Cambodian judges were announced, the U.S. Deputy Chief of Mission, Mark Storella, called on Sean Visoth to challenge some of the appointments, complaining about Ney Thol in particular. Storella was concerned about, among other things, Ney Thol’s role in the controversial prosecution of opposition leader Cheam Channy and the earlier prosecutions of royalist politicians Norodom Ranariddh and Nhek Bun Chhay. Visoth told Storella that Thol was likely selected because, having been a member of the gendarmerie under Lon Nol, he had military experience that would be important when the tribunal had to deal with war crimes charges.55 Moreover, as president of the Military Court, Thol had two likely Khmer Rouge Tribunal suspects—Ta Mok and Duch—already in custody. Storella was not persuaded. In a diplomatic cable to the State Department discussing the tribunal appointments, which Storella titled “The Good, the Bad and the Ugly,” Ney Thol was the sole judge falling into the “ugly” category.56 Though the professional credentials of international nominees to the Extraordinary Chambers would be rather more impressive than those of

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the Cambodian nominees, there were early concerns that the process by which the internationals were to be selected might turn out to be hardly less opaque than the Cambodian process. The international appointments to the Khmer Rouge Tribunal were to be made by the UN Secretary-General, pursuant to nominations by UN member states and final approval by Cambodia’s Supreme Council of the Magistracy. In the appointment of judicial personnel to other internationalized tribunals, there has often been a distinct sense that the process is guided by the rule that “he who pays plays.” Indications are that this rule applied equally in the case of the Extraordinary Chambers. The British planned to provide funding for the trials,57 and Britain declared fairly early in the negotiating process that it intended to nominate a judge to serve on the Khmer Rouge Tribunal.58 The ECCC’s second international co-prosecutor would have British nationality. The Japanese too planned to provide major funding for the proceedings,59 and early on signaled their intent to provide a judge.60 A judge of the Supreme Court Chamber was to be Japanese. Rumors circulated among the diplomatic corps for some time that France had already staked its claim to the position of co-investigating judge for the Extraordinary Chambers, and as co-chairs of the GIS, the French were also expected to be one of the largest financial donors to the trials. The first international co-investigating judge would be French, as would a judge of the Trial Chamber. Another Frenchman became a reserve judge in the Office of Co-Investigating Judges. Germany provided extensive funding to civil society actors involved in supporting the tribunal, and the second international co-investigating judge was German. The Swiss government had also let it be known that it aimed to nominate a judge and to supply funding in support of the tribunal.61 The third international co-investigating judge would be Swiss. Australia was also a major donor to the tribunal, and Australian Rowan Downing served for many years as a judge of the Pre-Trial Chamber. The United States also eventually provided substantial funding to the court, gaining several key judicial appointments. Martin Karopkin was initially appointed as a reserve judge in the Supreme Court Chamber and later became the international reserve judge of the Trial Chamber, Nicholas Koumjian served as the third international co-prosecutor, Philip Rapoza became reserve judge in the Supreme Court Chamber, and Mark Harmon was the fourth international co-investigating judge.

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The quality of the proceedings at the Extraordinary Chambers would depend intimately on the caliber of the key personnel appointed to realize the objectives of the tribunal. While many focused exclusively on the judges of the three chambers, the performance of the co-investigating judges, the co-prosecutors, and the director and deputy director of the Office of Administration would likely be equally if not more crucial to the success or failure of the Khmer Rouge Tribunal. The Royal Government was hobbled in this regard by its ongoing human resources crisis and its intense focus on maintaining political control over the proceedings. The sometimes feckless record of appointments to other tribunals, and the opacity that typically characterizes the UN appointment process, similarly inspired little confidence in the run-up to the selection process. In the event, however, recruitment of senior international leadership turned out to be a relatively transparent process. On April 8, 2005, the UN Secretariat posted a job announcement for the deputy director of the ECCC, who would also serve as coordinator of UN assistance to the Khmer Rouge Tribunal. The application period for the deputy director position closed on May 8. According to a Japanese diplomat, more than 100 applications were received.62 On August 25, 2005, the UN announced that Michelle Lee of China would be appointed as the Coordinator of UNAKRT effective October 14, and would become the deputy director of the ECCC.63 Lee had previously been chief of the Division of Administrative Support Services at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania. The appointment of a Chinese national to this key post raised some hackles among Cambodia’s civil society.64 Lee’s appointment became official with a decree from King Norodom Sihamoni on November 12, 2005.65 The selection of the director of administration (DOA) by the Cambodian side was far more shrouded in intrigue. According to Sean Visoth, there were three leading candidates for the job: Helen Jarvis, Om Yen Tieng, and himself.66 But Sok An “played his cards very close to his vest,” Visoth said, so none of them knew what the decision would be. In early September 2005, asked if he thought Sean Visoth would be appointed as the DOA, Om Yen Tieng replied, “Oh, no! He is much too important!” 67 Asked what she knew of the DOA recruitment process, Helen Jarvis simply replied, “I wasn’t involved in the recruitment, so I don’t know.”68 None of them had any idea. But on September 14, 2005, Sok An met with the Japanese ambassador

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to discuss legal and judicial reform, as well as to provide an update on progress in preparing for the Khmer Rouge Tribunal.69 As Sean Visoth sat by Sok An’s side taking notes at the meeting, the ambassador asked Sok An who would be appointed as the director of administration. Without a word, Sok An pointed at Visoth. This is how Visoth learned that he would be in charge of directing the tribunal.70 In many ways, he was an excellent choice. Smooth, urbane, and fluent in English, he knew how to work with foreigners. He was also both a lawyer and a highly experienced administrator. As with Michelle Lee, Sean Visoth’s appointment became official with the signing of a Royal Decree by King Sihamoni on November 12.71 In what would turn out to be a far-sighted move, the decree also appointed Tony Kranh as reserve director of the Office of Administration. The decisions were not publicly announced until November 24.72 On June 30, 2005, UN Under-Secretary-General for Legal Affairs Nicolas Michel issued a call to member states for nominations of individuals to serve as international judges, the international co-prosecutor, and the international co-investigating judge.73 Michel asked that interested parties respond within sixty days, or by August 29, 2005. Attached to the letter was an extensive list of requirements for each of the positions, as well as a description of the conditions of service. The UN announced a short list of candidates on November 23, posted on its website.74 The next day the secretariat invited public comment on the candidates, with a deadline of December 7, when interviews of the candidates were scheduled to begin.75 There were twenty-one candidates on the short list.76 It remains unclear precisely how the universe of all applicants was whittled down.77 According to the Documentation Center’s Youk Chhang, the selection was done by the UN Legal Counsel, Nicolas Michel.78 In early December, the twenty-one finalists for international judicial slots at the tribunal began to gather in New York for the formal interview process. The interview panel consisted of the UN Legal Counsel Nicolas Michel, Assistant Secretary-General for Legal Affairs Ralph Zacklin, former ICTY Judge David Hunt, and ICC Judge Claude Jorda.79 From the short list, the panel chose twelve candidates to be presented to the Supreme Council of the Magistracy for final appointment. Robert Petit of Canada and Paul Coffey of the United States were the final candidates for international coprosecutor; it would be up to the Supreme Council of the Magistracy to

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appoint one of them prosecutor and the other reserve prosecutor. Marcel Lemonde of France was the nominee for international co-investigating judge; the secretary-general was supposed to supply two candidates for this post, but could only find one who passed muster with the selection panel. Judge Lemonde had had a distinguished career, including a long stint as president of France’s Association of Investigating Judges, deputy director of the National School of the Judiciary, and a president of the Court of Appeals in Paris. His leadership skills, conversational English, and spirit of bonhomie would stand him in good stead for his exceptionally challenging new assignment. Meanwhile, Rowan Downing of Australia and Katinka Lahuis of the Netherlands were nominated for the Pre-Trial Chamber. Finally, Silvia Cartwright of New Zealand, Jean-Marc Laverne of France, Claudia Fenz of Austria, Motoo Noguchi of Japan, Agnieszka Klonoweicka-Milart of Poland, Chandra Nihal Jayasinghe of Sri Lanka, and Martin Karopkin of the United States were nominated to take the two international posts on the Trial Chamber bench and the three posts on the Supreme Chamber bench; the remaining two would become reserve judges in one or the other chamber. The names of the nominees were transmitted to the Cambodian side on March 8.80 On May 4, the Supreme Council of the Magistracy made its decision,81 which formally took effect when King Sihamoni signed a Royal Decree on May 7.82 Robert Petit would be the international co-prosecutor and Paul Coffey would be the reserve international co-prosecutor. Petit was highly experienced, a Canadian federal prosecutor and a counsel with the War Crimes Section of Canada’s Ministry of Justice. He had worked in the Office of the Prosecutor at the International Criminal Tribunal for Rwanda, as a prosecutor with the Special Panels for Serious Crime in East Timor, as a senior trial attorney at the Special Court for Sierra Leone, and as a legal advisor to the United Nations Mission in Kosovo. This was a man who knew broken societies, and how to deal with those who had broken them. And he also had a wicked sense of humor. Silvia Cartwright and Jean-Marc Laverne would be international judges of the Trial Chamber, while Claudia Fenz would be the reserve international judge in that chamber. Motoo Noguchi, Agnieszka KlonoweickaMilart, and Chandra Nihal Jayasinghe would be international judges of the Supreme Court Chamber, with Martin Karopkin acting as the reserve

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judge. The national posts at the court were apportioned just as had been suggested in Sok An’s March  23 memorandum to Hun Sen. The senior legal personalities for the Khmer Rouge Tribunal were now in place. Their positions became official on July 3, 2006, when they all took their oaths of office at the Royal Palace.83 The greatest challenge would be whether or not this large group of jurists from very diverse—indeed, possibly incommensurable—legal traditions could find a way to work together to achieve justice for the crimes of the Khmer Rouge. THE DEVIL IS IN THE DETAILS

While the last maneuvering was under way to fill the top jobs at the Khmer Rouge Tribunal, the administrative staffs at both the Task Force and the UN Secretariat were hard at work attempting to corral the final details on a number of crucial technical issues. According to the UN- Cambodia Agreement on the tribunal, the two sides had to come to terms on two supplementary agreements, one concerning utilities and facilities and the other on safety and security.84 Another crucial issue was the question of the Rules of Evidence and Rules of Procedure (ROE/ROP) that would govern the proceedings. Cambodia’s Criminal Procedure Code—the “procedures in force” upon which the Cambodians had insisted—contained no detailed rules on evidence, certainly nothing that would adequately account for the voluminous and widely varied types of evidence likely to be introduced, and of course the Criminal Procedure Code also contained no directives governing how the sui generis institutions of the Khmer Rouge Tribunal should operate. Something had to be done about these glaring lacunae. Another time-sensitive problem was the matter of training. The Cambodian jurists as a whole had next to no knowledge of the bodies of international criminal law and international humanitarian law central to the subject matter jurisdiction to be addressed at the tribunal. Contrariwise, the international jurists assigned to the tribunal would likely arrive in Phnom Penh possessing no familiarity with the particular version of civil law practiced in Cambodia; those from common law jurisdictions might have no familiarity with civil law systems at all. Extensive remedial training would therefore be necessary for all of the jurists. Finally, SecretaryGeneral Kofi Annan and his legal staff believed that it was essential for the

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international jurists—the judges and the co-prosecutor—to be accorded the status of UN staff members, but this required a specific act by the UN General Assembly. All of these issues had to be sorted out before the tribunal could get down to its core business, and that would end up taking far longer than anyone expected. Article 14 of the UN-Cambodia Agreement on the tribunal states that the Royal Government of Cambodia will provide premises for housing the operations of the tribunal.85 That article further states that the government will provide such utilities, facilities, and other services that may be necessary for the operation of the tribunal, as agreed by the two parties. Article 17, however, states that the United Nations shall be responsible for certain utilities and services, as agreed with the government.86 Thus arose the requirement for the “Supplemental Agreement between the United Nations and the Royal Government of Cambodia Ancillary to the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea regarding Utilities, Facilities and Services.”87 On the face of it, this was a relatively simple accord on logistical matters such as power and water, fire and emergency services, postal services and telecommunications, garbage and housekeeping, and transportation and catering. In practice, it took nearly two years to hash out, with the bulk of that time apparently consumed by getting agreement on the details among the multiple concerned United Nations agencies and departments. Initial discussions with the Cambodian side began in mid-2004, and drafting of the document commenced in the Office of Legal Affairs later that year. The UN drove a hard bargain on this aspect of its cooperation with Cambodia, insisting that the government pay for all improvements and alterations to the premises that would be required to turn a bare-bones military barracks into a modern, high-tech court. The government was also required to fund all maintenance to the premises and to provide all the necessary services, with the sole exception of telecommunications, the costs of which would be defrayed by the UN. By the beginning of December 2005, the UN had produced its fourth draft of the agreement and was finally ready to share the document with the Cambodian side.88 The visit by UNAKRT Coordinator Michelle Lee and a team from the UN Secretariat to Cambodia

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in early December provided an occasion for the two sides to work out most of the remaining issues in the agreement. It was finally signed by Michelle Lee on March 14, 2006.89 The second supplemental agreement between the UN and Cambodia, on safety and security, was by its nature rather more sensitive than the utilities and facilities agreement.90 Among other things, the agreement addressed the physical security of the facilities and key personnel, land mines and unexploded ordnance, information security, emergency services, detention and security of accused persons, importation of weapons and other security equipment, and chains of command for security officers. Interestingly, however, this agreement seems to have been easier for the UN to finalize with the Cambodian side.91 That may have been because after the experience of the 26,000-strong invasion of foreigners, half of them armed, during the era of the United Nations Transitional Authority in Cambodia in the 1990s, the prospect of a dozen or so armed UN officers did not seem particularly troubling. Within the United Nations itself, however, the bureaucratic challenges were substantial. Issues such as assessing potential security threats, programming close protection, procuring weapons, devising rules of engagement, and arranging appropriate insurance brought into play many different organizational units of the United Nations Secretariat. Also interesting was the fact that the UN insisted on controlling security within the tribunal facility itself, organizing the court’s chain of command so that the International Chief of Security was at the top of the hierarchy. In view of the fact that—as embodied in the very name of the tribunal, the Extraordinary Chambers in the Courts of Cambodia—the tribunal was technically part of Cambodia’s domestic court system, it seems anomalous that its physical plant would be under the security control of an international organization. Nonetheless, the Cambodians acquiesced to this demand and the plan went forward. Like the agreement on utilities and services, the agreement on safety and security was signed by Michelle Lee and Sean Visoth on March  14, 2006.92 Deputy Prime Minister Sok An greeted the signing ceremony by saying, “It has taken many years to get to this point but we now stand on the brink of finally establishing an internationally recognized judicial procedure to address the crimes committed in Cambodia between 1975 and 1979.”93 An obscure technical issue complicated the completion of the supplementary agreements. In his report on the Khmer Rouge trials in March 2003,

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Secretary-General Annan noted that because the top international officials of the Khmer Rouge Tribunal would be formally appointed by Cambodia’s Supreme Council of the Magistracy, “under normal circumstances it would be difficult for these officials to be considered officials of the United Nations.”94 However, because the UN would be paying for their salaries and benefits, it was “highly desirable,” for administrative purposes, that they possess status as officials of the United Nations. Annan therefore requested that the General Assembly take a decision to deem these officers of the court to be officials of the United Nations. No one in the General Assembly seemed to take notice of this request. Accordingly, the following year, the secretary-general reiterated his request to the General Assembly in another report on the Khmer Rouge trials. “The General Assembly has so far not taken a decision in this matter,” he wrote. “I find it necessary to stress the importance of this point to maintain the credibility of the Extraordinary Chambers and to ensure their independence and impartiality, both actual and perceived.”95 A year later, still the General Assembly had failed to act. Once again, the secretary-general found it necessary to highlight this issue in another report to the General Assembly: It will be recalled in this connection that in my reports of 31 March 2003 and 12 October 2004 to the General Assembly (A/57/769, paras. 58–59, and A/59/432, para. 29) I recommended to the General Assembly that it adopt a decision deeming the international judges, the international co-prosecutor and the international coinvestigating judge to be officials of the United Nations for the purpose of their terms and conditions of service. I would like to reiterate my recommendation that the General Assembly adopt such a decision, which is important for the credibility of the Extraordinary Chambers and to ensure their independence and impartiality, both actual and perceived.96

At this late juncture, the United Nations was in the final stages of selecting jurists to fill the top international positions at the court and was also attempting to finalize the two supplemental agreements. The legal status of the international officials was a consideration in precisely how portions of those agreements would be phrased. Finally, on February 6, 2006, the General Assembly acted on the secretary-general’s request.97 The supplemental agreements could now be finalized, putting into place some of the last technical details before the actual start-up of the tribunal.

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Another piece of the technical preparations for the tribunal concerned training for the court’s senior Cambodian and international legal personnel. As previously noted, most of the Cambodians had no experience with the types of international law that would form a large part of the subject matter jurisdiction of the tribunal, and most of the international personnel had no experience with Cambodia’s particular approach to civil law. As the secretary-general phrased it in one of his reports to the UN General Assembly, it would be necessary for “practically oriented training to be organized for the period following the selection and appointment of Cambodian and international court personnel for the Extraordinary Chambers.”98 People on the ground in Cambodia, however, knew that they couldn’t wait for the appointment process to run its course before beginning the legal training. An initial training program was begun early on, so early, in fact, that the Cambodian side did not yet know which judges should benefit from it. Organized in cooperation between the United Nations Development Programme and the government’s Royal School of the Magistracy, the two weeks of classes focused on international criminal law and transitional justice.99 One member of the training team, Mohamed Othman, reported that the first round of training went reasonably well, but he thought that it would take a full year to get the judges up to speed on the elements of international law necessary to function effectively at the tribunal.100 Moreover, he suspected that many of the judges in the training session would not be among the appointees to the tribunal. That suspicion was later confirmed by Sean Visoth.101 In the end, however, all but four of the national appointees to the tribunal had attended at least one of the training sessions.102 A second UNDP-sponsored training session was convened on April 25, 2005, and, like the first session, ran for two weeks. It focused primarily on procedure, specifically, “the way Cambodian rules of procedure and evidence will be supplemented with international rules when required.”103 The session also examined a draft set of the Rules of Procedure and Rules of Evidence, although it only found time to consider the first 10 out of 200 articles in the draft.104 In August 2004 and June 2005, the UNDP in cooperation with the Bar Association of the Kingdom of Cambodia organized a pair of two-week seminars for defense attorneys who might be interested in taking on clients at the Khmer Rouge Tribunal.105 Of the thirty participants in the first

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round of training, half returned for the second round, supplemented by fifteen new lawyers, including Benson Samay, defense counsel for detained Khmer Rouge leader Ta Mok.106 Many of the judges and lawyers who attended the UNDP training were not overly impressed by the educational value of the sessions. At a public forum in May 2005, several of them complained that the training had been “inadequate.” Chuon Sun Leng, one of the candidates for reserve national co-prosecutor, said that he still did not have basic information about how the tribunal would be conducted. “The number of victims are [sic] in the millions, how will the cases be compiled? Will the government order the judicial police to do the investigations?”107 Leng added, “I attended the two training sessions by the UNDP and the lecturer only talked about theory, not about practice, and when we asked about the Cambodian law, they said they are international experts not experts in Cambodian law.”108 Mong Monichariya, who would be appointed the reserve national judge of the Supreme Court Chamber, said that the training was not only insufficient but also should be conducted jointly with the international judges of the tribunal.109 Defense lawyer Ang Udom, who would eventually join the legal teams of both Ieng Sary and Meas Muth, complained that despite the bar association training session, too little attention had been devoted to issues relating to defense. “The prosecution and judges are already exercising their muscles and we do not know what is going on at all, we haven’t heard anything,” he said.110 As if to underscore Udom’s point, Heather Ryan of the Open Society Justice Initiative told the forum that her organization had just sent National Co-Prosecutor Chea Leang and National Co-Investigating Judge You Bun Leng to The Hague for a two-week course at the Institute for International Criminal Investigation.111 NGOs attempted to fill the gap with a variety of instructional programs. The Documentation Center of Cambodia hosted a series of two-week legal trainings on criminal defense for academics, journalists, lawyers, and others in 2005.112 In October 2003, March, July, October, and November 2004, and January, March, July, August, and September 2005, the Open Society Justice Initiative sent groups of international experts to Phnom Penh for technical advisory consultancies on a wide range of topics, including judicial selection, rules of procedure and evidence, preparations for interpreters and translators, court security, victim and witness protection, courtroom management, international tribunal set-up, judge selection, judicial

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integrity, tribunal outreach, court monitoring, and other relevant topics.113 These experts worked with a wide variety of Cambodian organizations, including civil society groups, the Secretariat of the Task Force, the Royal School of the Magistracy, the KRT Security Commission, the Judicial Police, the National Police Academy, and other government institutions slated to be involved in the tribunal in one way or another. Despite all the efforts by governmental, intergovernmental, and nongovernmental organizations, as the launch of the court grew near, it remained clear to all concerned that training would remain an ongoing need. A key technical matter prior to start-up of the tribunal concerned the Rules of Evidence and the Rules of Procedure under which the court would operate. As early as 1999, Cambodian legal advocates were arguing that a special set of procedures would be required for the KRT. “As the existing criminal procedure laws do not meet international standards, rules of procedure and evidence must be encoded in new legislation. . . . Drafts of all statutes concerning the trials must be publicly accessible and opened to public commentary.”114 Cambodian human rights groups would return to this theme again and again during the course of the process. In 2000, the Cambodian Human Rights Action Committee (CHRAC) reiterated the need for sui generis rules of procedure for the KRT, asserting that “Existing Cambodian criminal procedure law, which the current tribunal plan mimics and refers to on numerous occasions, fails to meet such [international] standards in many regards.”115 More than four years later, these concerns still had not been resolved. Scott Worden, a former legal advisor to the Cambodian Defenders Project, said, “Relying on Cambodian laws and procedures, and filling in any gaps with international procedures is inconsistent. A new code of procedures for the new court is crucial for the fairness and efficiency of the trials.”116 CHRAC was still reiterating its now five-year-old call for rules of procedure and evidence to “be developed, clarified and adopted as soon as possible.”117 They continued, “CHRAC has again issued several press releases on this subject.” Noting that they were aware the Task Force was working on a draft rules of procedure, CHRAC appealed for the draft to be shared and for a mechanism to formally adopt it to be devised. “We take this opportunity to request the Task Force to share this draft with civil society. We call for the adoption of these rules of procedure and evidence either by authorizing the EC judges to adopt such regulations, or that draft

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rules of procedure and evidence be forwarded for adoption by the National Assembly.”118 International NGOs echoed these concerns. “Greater clarity on Cambodian procedures is needed,” the Open Society Justice Initiative gently argued. “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.”119 In September 2005, a coalition of NGOs issued a detailed manifesto of items and issues that should be addressed by the KRT’s Rules of Procedure. Among many other things, they recommended that “The internal regulations should be adopted by a plenary session of the judges.”120 During the second round of UNDP training for the putative national candidates for KRT judge posts, participants were told that the tribunal would in fact have its own set of Rules of Procedure, and that those rules would be adopted by a vote of all the judges of the tribunal.121 Even so, Cambodian officials had long been uncertain whether or not the judges of the KRT could prepare their own ROE/ROP, as that might be construed as usurping the power of the National Assembly to approve laws. Some argued that such a course of action would be impossible for that reason. Others argued that the internal procedures of a special court were not “law” per se, but mere regulations, and therefore would not infringe on the prerogatives of the legislative branch. During the National Assembly debate on the amendments to the tribunal law, Member of Parliament Khieu San suggested an additional amendment that would explicitly authorize the judges of the KRT to prepare their own Rules of Procedure. However, Deputy Prime Minister Sok An said that this was not possible, because the amendments had to be strictly limited to those which would bring the tribunal law into conformity with the UN-Cambodia agreement. Sok An’s assertion was repeated by National Assembly President Norodom Ranarridh and Ek Sam Ol, chairman of the Commission on Legislation and Justice.122 In late summer 2003, lawyer and human rights activist Gregory Stanton launched a project to prepare a draft Rules of Procedure and Rules of Evidence for the KRT.123 By August 8, 2004, he had completed a draft of the document, cobbled together from the International Criminal Court’s ROE/ ROP, the Special Court for Sierra Leone’s Rules of Procedure and Evidence, and Cambodia’s new draft Criminal Procedure Code.124 He then spent the

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next two weeks going over the draft with the staff of the STF, getting through the first 100 of the 159 articles. On August 21, Stanton determined that it was time for the STF to take ownership of the document and to do what was necessary to finalize the rules and get buy-in by the Cambodian bureaucracy. Observers of the tribunal negotiating process had long worried that the start-up of the court would be delayed, or worse, if no rules were in place to guide the proceedings. Now, it seemed, this key building block of the Khmer Rouge Tribunal had been prepared well in advance, and the court would be able to hit the ground running. But as with so much else in this complex process, things would not work out that way. FUNDING THE NATIONAL SIDE

Article 15 of the Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea is brief and self-explanatory. It states, “Salaries and emoluments of Cambodian judges and other Cambodian personnel shall be defrayed by the Royal Government of Cambodia.”125 In the initial budget, the estimate for Cambodia’s total funding requirements for years one through three was $13.2 million.126 Of this total, $9.2 million was for various staffing costs, approximately 69 percent of the total. Early on, however, Prime Minister Hun Sen laid down a marker, declaring in September 2004 that Cambodia could only pay its share with “in-kind” contributions.127 STF Secretary Sean Visoth was a bit more expansive, saying that the only cash Cambodia planned to spend on the trial was for the salaries of Cambodian personnel.128 In December 2004, when the final budget was hammered out, Visoth said that Cambodia would “cover 13.26 million dollars of the expenses while the remainder will be the UN’s responsibility.”129 This stance would soon change. On Monday, March 28, 2005, the United Nations planned to convene a donor conference in New York to solicit funding for the international portion of the tribunal budget. The previous Friday, Hun Sen advisor Om Yen Tieng had called diplomats in Phnom Penh together for an announcement concerning Cambodia’s portion of the budget. “Complementary to the [UN] Secretary-General’s appeal,” Yen Tieng told the diplomats, “we are appealing to interested states to assist Cambodia in meeting its allocated share of

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the budget.”130 The Cambodian contribution would amount to $6.7 million, he said, of which $5.2 million would be in the form of in-kind services, outside of the formal budget, such as the provision of premises for the court. Cambodia’s actual cash contribution to the expenses would be a mere $1.5 million.131 That subsequent Monday, in announcing the results of the donor conference, the UN ignored Tieng’s announcement, flatly stating in a press release that “Cambodia’s Government would provide the remaining $13.3 million.”132 This would mark the beginning of an extended stand-off between the UN and the donors on one side, and the Cambodian government on the other. The very next day, Documentation Center of Cambodia Director Youk Chhang made an intriguing suggestion. The government should approach wealthy Cambodian businessmen and ask them to defray Cambodia’s expenses for the tribunal.133 “I think they should look to private businesses,” he said. “A lot of tycoons have benefited from the government’s policies and could contribute. I think people would come forward.”134 Before long, the mavens of Cambodian business did indeed begin to step up to the plate. Sok Kong of Sokimex Co, also chairman of the Cambodian Chamber of Commerce, announced, “I will donate money for [the tribunal] in order to help the government.”135 Kith Meng, chairman of Royal Group of companies, also endorsed the idea. “If [Hun Sen] comes up with a policy or a formal request, we would have no objection,” he said.136 Diplomats were enthusiastic about the proposal, with The Cambodia Daily reporting that one said, “if the government were to launch a formal appeal, it would do much to show donors—many of whom are reportedly frustrated with the government’s inability to contribute more than $1.5 million to the trial— that it is making an effort.”137 Enthusiasm for the idea seemed to be growing. Helen Jarvis of the government’s tribunal Task Force tried to get out in front of the snowballing sentiment, asserting that “The doors have been open. We’ve always said we are accepting donations.” Policies for accepting such donations are “being put in place. It’s in the works.”138 Cambodia’s leading opposition political party also jumped on the bandwagon. A spokesman for the Sam Rainsy Party suggested that even ordinary Cambodians should have a chance to contribute funding to the tribunal. “We believe the Khmer people would want to remove the last hurdle, and they ought to be encouraged

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and given an opportunity to do so. They are not rich, but the Khmer people living inside and outside the country can manage an average one dollar per head to kick start the trial that means so much to them.”139 Everybody seemed to like the idea of privately funding the Cambodian side of the tribunal budget—everybody, that is, except the one person who mattered. Two days after the Sam Rainsy Party’s comments on tribunal funding, Hun Sen rejected the idea. “I think Cambodians should keep that money to support themselves rather than giving it for the court to try the Khmer Rouge,” he said. “Or they could spend the money to buy food and make offerings to the spirits of their parents who were brutally killed by Pol Pot’s group. That is better.”140 The prime minister went on to harshly mock the opposition for suggesting the idea. “They do not win [the election], but they want citizens to pay money. If they had won the election, when you feed your dogs, you would have to pay tax? And when you breathe, you would pay tax as well.”141 His advisor, Om Yen Tieng, later amplified on these remarks, noting, “We won’t do fund raising with our people or businesses. Our country has appealed to donors to help on this matter.”142 There were a variety of reactions to this development. Youk Chhang, who had floated the idea of public funding in the first place, was disappointed. “Maybe in the past they got used to asking for money from one source,” he lamented.143 He was also dismayed that Hun Sen had found it necessary to use the occasion to attack the opposition. “We should find a way to separate [the Khmer Rouge Tribunal] from politics.”144 Some in the diplomatic community were rather more pointed in their responses. One representative of the donor community indignantly declared, “I don’t understand why donors should cough up twice. I don’t see any reason why Cambodia cannot go to fund-raising.”145 Another diplomat said that the donors had been pushing the government to be flexible in its approach to fundraising. “The way the government raises the money is up to them,” he said. “But in our view there is a clear agreement between the country and the UN” that Cambodia would pay $13.3 million.146 At this juncture, the Japanese stepped into the breach. On June 10, Japanese Foreign Minister Nobutaka Machimura visited Cambodia seeking support for Japan’s bid to become a member of the UN Security Council. Machimura did not come empty-handed. The previous March, Hun Sen had traveled to Tokyo, asking the Japanese to provide for Cambodia’s

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tribunal-related expenses, but Japan demurred.147 In his meeting with Cambodian Foreign Minister Hor Nam Hong, however, Machimura offered the quid pro quo. Japan would use a special yen-denominated aid account to cover the shortfall in Cambodia’s tribunal budget. Nam Hong responded that Cambodia was “happy to accept.”148 The funding issue was seemingly resolved. Nonetheless, ambiguity persisted. Within days, diplomats were again expressing frustration with the government’s reticence. “They must take the initiative. It’s up to Cambodia. But we haven’t heard anything,” complained one.149 Queried about the government’s commitment to the Japanese offer, Helen Jarvis could only say, “The government has made an appeal to the donors, and we’re waiting for [their response].”150 A week later, Hor Nam Hong reiterated his previous comment indicating that Cambodia would accept the Japanese gift. “We will use this money, so we hope that the Khmer Rouge tribunal can proceed soon,” the foreign minister told reporters.151 But the Japanese Ambassador to Cambodia, Fumiaki Takahashi, had not received a formal response from the Cambodians, and he wasn’t so sure. “They need to come with an expenditure program,” he said.152 Another Japanese diplomat went further, stating that it was “not only Japan who assist the Khmer Rouge tribunal. So we understand that now the Cambodian government are prepared, just appeal to all donor countries to assist the Cambodian portion.”153 And so the stand-off continued. By mid-August, Prime Minister Hun Sen was becoming frustrated that the international community was not filling Cambodia’s tribunal coffers. Government officials had made clear that they wanted new funding for the national side of the court budget, not a diversion of an existing aid account. Hun Sen openly threatened that there would be no Khmer Rouge tribunal unless the donors were forthcoming with cash: When I speak like this, it doesn’t mean the government doesn’t have the will to move forward. But all the donor countries, they contribute to the U.N. and they know that Cambodia is poor. So if they know it’s poor, why don’t they give the money to Cambodia? If they give the money and Cambodia didn’t take any action, then they can accuse. Now they cannot accuse Cambodia. If they don’t give the money, then the tribunal cannot be established. I don’t have the money for setting up this tribunal.154

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In October, the spigot finally began to trickle just a bit, when India stepped forward to donate US$1 million to the Cambodian side of the court.155 The European Commission was also considering a donation to the Cambodian budget and eventually came up with a $1.2 million contribution.156 But that still left a $9.6 million deficit in Cambodia’s financial requirements for the first three years of the tribunal. Other donors were beginning to dig in their heels. Canada and Germany both publicly indicated that they had no more money for Cambodia’s tribunal budget.157 The Germans made no attempt to hide their annoyance. Theo Kidess, deputy chief of mission at Germany’s Cambodian embassy, was frank: “We really feel it’s the Cambodian government’s obligation [to fund its share of the tribunal].”158 Hun Sen had demanded control of the tribunal, and he also demanded that someone else pay for it. As it would turn out, all of this drama was mere prologue to a struggle over funding the national side of the Khmer Rouge Tribunal that would drag on for many years and would, from time to time, bring judicial operations at the court to a screeching halt. All was in readiness. The court had a physical home, a budget, monies in the bank, personnel assigned to key roles, and an agreement between the

FIGURE 6.1 . ECCC courtroom building at the Kambol military base

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UN and Cambodia on the final technical details. One crucial question to which the answer remained unknown, and frankly, unknowable, however, was how the international jurists would interact with the national jurists. Anyone who had more than a passing familiarity with how Cambodia worked could not fail to be aware that Cambodia’s legal system operates under very different parameters than do the systems from which the internationals hailed. Would a group of jurists steeped in instrumental legalism be able to play nicely with another group of jurists committed to classical legalism? No one really knew. But for now, it was game time for the world’s newest exercise in transitional justice.

Chapter Seven

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The first year of the Khmer Rouge Tribunal would be deeply contentious and filled with high drama. With lawyers coming from East and South Asia, Australia and New Zealand, and all over Europe and North America, it would be a challenge for the internationals to harmonize their disparate approaches to and experience with the law. But that challenge paled before the difficulties encountered in attempting to blend the classical legalism of the internationals with the instrumental legalism of the national lawyers. The Cambodian government was determined to keep the tribunal on a tight leash, and the nationals at the court were the instrument through which that leash would be kept taut. The internationals, in contrast, were determined to independently exercise their best professional judgment. The resulting tensions became so sharp that both sides would repeatedly threaten to pull out of the process entirely. There were numerous junctures where it appeared likely that the tribunal would simply implode. THE NATIONALS AND INTERNATIONALS TAKE ONE ANOTHER’S MEASURE

And so it began. Early in July 2006, almost all of the key international players of the KRT gathered in Phnom Penh to launch the court. On July 3, the co-prosecutors and the national and international judges assembled in the

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Silver Pagoda at the Royal Palace to be formally sworn in as officers of the court.1 The physical infrastructure was still rudimentary, with little more than a chair, table, and desktop computer for each of the few individuals populating the Offices of the Co-Prosecutors and Co-Investigating Judges, but no file cabinets, bookcases, or any other office furnishings, much less judicial offices or conference facilities. So the court’s administrators selected the historic Hotel Le Royale as the initial base of operations. At the opening banquet that evening, Deputy Prime Minister Sok An declared, “As projected, Year One of the ECCC operations will commence when the CoProsecutors commence their work—now planned for 10 July 2006—a week from today.”2 But before that work could begin, an initial judicial conference was convened to discuss exactly how it would proceed. On the morning of July 4, the judicial officers of the court and the handful of staff thus far recruited met at the Hotel Le Royale for discussions on how best to tackle the complex set of tasks that lay before them. An astonishing range of fundamental issues had to be resolved before the new court could carry out its functions. For example, the UN-Cambodia tribunal agreement specified that the KRT would operate under legal “procedures in force” in Cambodia, but exactly what procedures were in force? Cambodia had promulgated a bewildering array of procedural and criminal codes over the previous decades—the 1956 penal code and code of criminal procedure; the 1979 and 1980 decree laws; the 1989 law on criminal procedure; the 1992 UNTAC criminal code; the 1993 State of Cambodia criminal procedural code; the 1993 Cambodian constitution and a host of legal provisions adopted since then; and a new draft criminal code and code of criminal procedure, which had been in preparation for a decade and were nearing promulgation. In practice, judges tended to draw more or less randomly from among these widely varying legal authorities. The UN-Cambodia agreement also stated that where Cambodian procedures were lacking in detail, internally contradictory, or inconsistent with “international standards,” those shortcomings would be remedied by reference to international standards. But what exactly constituted “international standards”? The international jurists at the KRT hailed from at least ten different jurisdictions, some from countries with legal systems based on common law, some from countries with legal systems based on civil law, and all accustomed to varying approaches to procedural matters. It would not be a simple affair to sort out all of these different practices and

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agree on a common set of standards to apply at the KRT. That became painfully clear in the opening days of the July 2006 conference, but slowly the plenary hacked out a set of issue areas that would have to be addressed in detail. On July 6, the plenary broke up into working groups to delve into more detail on each of these topics. One working group concerned issues of investigations, detentions, and pretrial issues.3 Members of this breakout group included the National and International Co-Prosecutors, Chea Leang and Robert Petit, the National and International Co-Investigating Judges, You Bunleng and Marcel Lemonde, and Pre-Trial Chamber Judge Ney Thol, as well as Judges Katinka Lahuis, Chandra Nihal Jayasinghe, Thou Mony, and Pen Pichsaly. An early exchange among members of the group revealed much about the challenges that lay ahead, rooted in very different understandings of legal procedure. “Hypothetically speaking,” Judge You Bunleng began, “what would be the view of our international colleagues if, sometime in the next few days, the attorneys for Ta Mok and Duch were to appear on our doorstep and demand that their clients either be charged or be released?” Ta Mok and Duch were two well-known Khmer Rouge leaders who had been in government custody for more than seven years, specifically in the custody of Judge Ney Thol. Upon hearing this, Thol interrupted his colleague, exclaiming, “But Brother! It is not hypothetical at all! The Upper Brothers signed the papers this morning!” Bunleng glared at Thol and snapped, “Shut up! I will handle this!” But it was too late; the cat was already out of the bag. The internationals reacted coolly to the gambit. International CoProsecutor Petit looked at Judge Thol and replied, “There is no chance that we are simply going to take your dossier and your charges, because we are going to investigate the alleged crimes and determine for ourselves which, if any, laws may have been violated, and then we will prefer our own set of charges.” International Co-Investigating Judge Lemonde was similarly dismissive of the “hypothetical” proposition. “It is impossible!” he insisted. “The Co-Prosecutors have not yet conducted a preliminary investigation, and we have not received an Introductory Submission, so we cannot possibly contemplate taking any persons into custody at this time. We shall proceed according to the Cambodian procedure.” You Bun Leng looked deflated at this response, but the nationals were not prepared to leave it at that. They had a plan.

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Bunleng reiterated that it would not be possible to begin the work with a preliminary investigation by the co-prosecutors, because they would instead have to deal with a unique aspect of the situation: two prisoners were already in custody and, he insisted, they would be immediately transferred to the jurisdiction of the Extraordinary Chambers. “We will however face an obstacle to the immediate beginning of the case. That obstacle is that if we begin by investigating, but when we begin on Monday, the two detainees will come to us immediately. When they send these people to us, we cannot begin substantial work immediately, but we have to make some preparations.” Judge Lemonde protested that this scenario was not in accordance with Cambodia’s legal procedures: “If the problem seems to be that on Monday, we have a request for bail, that cannot be, because we have no one under our jurisdiction, because we have not initiated any proceedings, so we have no jurisdiction to decide anything.” Judge Chandra Nihal Jayasinghe, the Sri Lankan jurist assigned to the Supreme Court Chamber, was initially sympathetic to the Cambodia position: “If they were arrested under Cambodian law, they have to be transferred to the Extraordinary Chambers,” he said. “So,” Bunleng repeated, “when you come to begin your work, the tribunal that took care of them before will transfer them to you immediately.” Lemonde turned once again to basic Cambodian legal procedure: “Yes, but obviously, the first thing Robert and his counterpart will do will not be to arrest people. They will have preliminary work to do. To arrest people will be the very last thing they will do. They have to select evidence first. Until then, until they arrest people and prosecute named persons, there is no jurisdiction on these particular persons.” The two sides continued to talk past each other for much of the morning, because of their starkly different concerns; the Cambodians wanted to continue the case begun by the military court, while the internationals wanted to follow proper procedure. The very idea of robust criminal defense rights was still relatively new to Cambodia, having been haltingly introduced only after 1993 in the wake of the UN intervention, so Bunleng’s next assertion was little short of breathtaking. “There is no measure to stop the defense counsel to transfer the case to the Extraordinary Chambers,” he asserted. Now, he seemed to suggest, defense attorneys were in control of questions of procedure and jurisdiction at the new court. International Co-Prosecutor Petit was not persuaded. “How we acquire jurisdiction, it has to be according to Cambodian law,” Petit began. “We can’t let facts or events

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make us proceed against the law. If in the court, any court, if somebody, anybody, brought a detainee to the court with a file, that wouldn’t work, would it?. . . The fact that somebody somewhere else in Cambodia has detained anyone without the Extraordinary Chambers having done any legal acts whatsoever has no relevance.” It began to dawn on the nationals that Petit and Lemonde were not going to budge on this key point of legal procedure. After lunch, discussion in the breakout groups resumed. Having apparently received new instructions, National Co-Prosecutor Chea Leang tried a new tack. What if, instead of taking custody of the prisoners held by the military court, the co-prosecutors simply received the case files that had been constructed by the military court? “We will wait until Monday to get documents from the military court,” she suggested. Petit would still not budge. “As part of our preliminary investigation and one of the things we will have to decide is the sufficiency and admissibility, is it enough for our decision,” he replied evenly, “because what happened in the military court, in terms of procedure and evidence, is not relevant for what we decide.” This alarmed Leang. “What do you mean, ‘not relevant?’ ” she demanded. “What matters is what we decide,” Petit replied. “We are not tied by anybody else’s decisions.” Judge Lemonde jumped in at this juncture in an attempt to nail down the point Petit had made. “There is a crucial legal point to clarify,” he began. “To us internationals, I think, the case exists from the moment that the prosecutors decide to prosecute in the Extraordinary Chambers. What has been done before does not exist legally.” This stance from the internationals seemed to provoke the national judges to get to the nub of the issue. Judge Bunleng demanded to know if the internationals were explicitly rejecting the authority of the military court: “Is the detention order from the previous court legitimate or not?” Petit was forthright, replying, “I don’t think we are bound by any legal decisions taken before by any other court.” Chea Leang was not prepared to let go of the point. “If you are saying you are free to do the preliminary investigation, what happens to the case built up by the previous court?” she asked. Ney Thol could not resist piling on: “Now the question that we would like to put to you, do we disregard the procedure used by the military court, or not?” Lemonde attempted to turn the issue back to basic legal procedure, repeating, “There is a case as soon as the prosecutors decide to prosecute. Before that, we have no authority to decide anything.”

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Bunleng attempted once again to insist that a decision would be forced upon the Extraordinary Chambers by the defense, saying, “Whether our response is to take up the case or reject the case, there will be a further response or an appeal.” Judge Lemonde was nearly at wit’s end, as they had been circling around this issue again and again all day. “They can’t appeal the decision if there has been no judicial decision, and there can’t be a decision as long as it has not been seized by the prosecutors,” he insisted. An equally exasperated Judge Bunleng then made it clear that the formalities of legal procedure were far from his main concern. The principal issue was maintaining continuity with the military court’s case: “We have to carry on with the case, whether it is within our jurisdiction or not.” Chea Leang jumped in, emphasizing that this was the prime issue for the national side. “So the question is, whether there is any recognition of what the military court has done on the case. I understand that you would like to do your preliminary investigation in order to make a new order, but you should be aware that there is already an order within the military court on this case.” Exactly what, one might ask, had Judge Ney Thol of the Phnom Penh Military Court done in the cases of Kaing Guek Eav alias Duch and Ung Choeun alias Ta Mok that was of such concern to the nationals? Ta Mok was one of the most senior Khmer Rouge leaders, former secretary of the Khmer Rouge Southwest Zone and a full member of the Communist Party Standing Committee. Mok gained great notoriety for the bloody mass purges he conducted across wide areas of Cambodia at the behest of Pol Pot and Nuon Chea. He was also the last man standing in the game of musical chairs as the Khmer Rouge entered into its final collapse. Ieng Sary had negotiated an amnesty with the government in 1996, Pol Pot died in April 1998, and at the end of 1998, Nuon Chea and Khieu Samphan surrendered to the government. That left Ta Mok with a handful of troops along the Thai border, where he was unceremoniously arrested by elements of the Cambodian military on March 6, 1999.4 Mok was promptly remanded into the custody of the Phnom Penh Military Court, where he was initially charged with violating the Law on the Outlawing of the Democratic Kampuchea Group.5 At the time of Ta Mok’s arrest, Cambodian law provided that the maximum permitted period of pretrial detention was six months.6 As that time limit for Mok’s detention approached, the Cambodian government hurriedly pushed through a new law, specifying that for certain classes of serious

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crimes—genocide, war crimes, and crimes against humanity—pretrial detention “can be extended for a period of one year; but such extension shall not exceed three years in total.”7 The military prosecutor then promptly charged Ta Mok with genocide.8 Three years later, in 2002, Ta Mok was charged with crimes against humanity.9 And then three years later, he was charged with war crimes and crimes against internationally protected persons.10 Mok, suffering numerous ailments and receiving poor health care, died in jail on July 21, 2006, while still in the custody of the military court.11 He had been in “temporary detention” for more than seven years. There was a strong case to be made that his detention violated the 1999 Law on Temporary Detention Period, which limits such pretrial detention to a maximum of three years. But at the beginning of July 2006 during the judicial plenary, he was still alive. Duch was the commander of the notorious S-21 Security Office during the Khmer Rouge regime, reporting directly to the Standing Committee of the Communist Party of Kampuchea. As such, he was in effect the chief of the Khmer Rouge secret police. When the regime was overthrown, Duch fled to the Thai border and eventually was assigned to teach in China under the alias Hang Pin. The Chinese soon realized who “Hang Pin” was and sent him home.12 He returned to work for the top leaders but was never again trusted with the key role he had fulfilled during the regime. By 1992, he left the active service of the Khmer Rouge, taking up his earlier profession as a teacher. Soon, his intelligence and diligence earned the attention of foreigners, and he began working for international humanitarian relief organizations, including the American Refugee Committee and World Vision.13 His Marxist gods having failed him, Duch converted to Christianity and became a minister. Finally, in 1999, British photojournalist Nic Dunlop chanced to run into the Reverend “Hang Pin” in a remote western Cambodian village. Dunlop instantly recognized him as Duch, a poster child for mass murder at the Tuol Sleng Museum of Genocide in Phnom Penh. In short order after Duch had been unmasked by journalists, the Cambodian government decided that it had no choice but to arrest him. Ney Thol was the man chosen for that job. Like Mok, Duch was initially charged with violating the Law on the Outlawing of the Democratic Kampuchea Group, even though he had left the “Democratic Kampuchea Group” years prior to the passage of the law.14

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Then he was charged with genocide just before his six month pretrial detention period lapsed, and just after the new law extending the temporary detention limit to three years came into force.15 Again, as with Mok, three years later he was charged with crimes against humanity,16 and three years after that, with war crimes and crimes against internationally protected persons.17 A few lone voices in the wilderness had been protesting this extended detention for years18 but were unable to generate any action from otherwise eagle-eyed international human rights groups such as Amnesty International and Human Rights Watch.19 The co-investigating judges of the Extraordinary Chambers in the Courts of Cambodia would finally issue an arrest warrant in 2007, effecting Duch’s transfer from the military court into detention by the ECCC.20 At that juncture, Duch had been in the custody of the military court for more than eight years, which was arguably more than five years beyond the allowable limit for pretrial detention. These are the facts that most likely animated the concerns of the national side at the initial plenary meeting of the KRT in July 2006. They had been hoping that the internationals would agree to simply continue the cases against Duch and Mok that Ney Thol’s court had begun, thereby resolving any lingering doubts about the legality of the military court’s handling of the suspected war criminals. The international co-prosecutor and international co-investigating judge, however, would have nothing to do with such a plan. They were determined to reset the clock to zero and take it from the top. It was likely that the approach they insisted upon would take much longer to execute, which was certainly a difficulty insofar as both the UN and the donors had decreed that the KRT was to complete its mission within three years—not to mention the fact that these two suspects were elderly, and not in the best of health.21 This episode embodied and foreshadowed an underlying conflict with which the KRT would struggle throughout its existence. The Cambodian jurists operated in a milieu where legal procedure was a means to an end—a political end—while for the international jurists, the legal procedures were an end unto themselves. There would be many more illustrations of the gulf between the pure classical legalism adhered to by many of the international jurists and the instrumental legalism practiced by the Cambodian side of the KRT, but few as starkly drawn as that which emerged at the opening plenary in July 2006.

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THE LAUNCH OF OCP

As Deputy Prime Minister Sok An had indicated the previous week,22 the real work of the KRT began when the co-prosecutors established their office on Monday, July 10, 2006, and launched preliminary investigations into the alleged crimes of the Khmer Rouge. A gargantuan task lay before them. The mayhem perpetrated during the regime’s three years, eight months, and twenty days was astonishing, but the Khmer Rouge had been killing people for more than a decade prior to their assumption of power, and for two decades after they were driven from Phnom Penh. The scope of the criminality was not merely nationwide but also bled across the borders into Cambodia’s three neighboring nations. The crimes to be investigated included alleged genocide against numerous groups, including Vietnamese, Chams, and possibly Buddhists as well as other groups such as the Khmer Krom. And what about genocide against the Khmer? There also was a bewildering array of potential crimes against humanity, spanning the gamut of the many categories described under those laws, such as persecution, enslavement, deportation, imprisonment, and rape, among other inhumane acts. The alleged war crimes were legion. Other categories of crimes included destruction of cultural property and crimes against internationally protected persons. Then there were crimes under Cambodian domestic law, such as murder, torture, and religious persecution. The number of potential perpetrators implicated in one way or another certainly numbered in the thousands, perhaps in the tens of thousands. National CoProsecutor Chea Leang neatly encapsulated the challenge we faced when, early on, she asked me, “How do you investigate two million murders?”23 One of the first tasks was to inventory the resources available to carry out such a daunting mandate. At the outset, the Office of Co-Prosecutors (OCP) was a skeleton operation, with just the national and international co-prosecutor, the national deputy co-prosecutor, a handful of national legal assistants, and two international investigators, Steve Heder and myself. Heder, the world’s leading academic authority on the Khmer Rouge, had been seconded to the OCP from the Office of Co-Investigating Judges for six months. He was a key asset to the office, but obviously, the work would not go very far very fast with such minimal staffing, so one crucial job was for the co-prosecutors to continue recruiting additional staff. More prosecutors and more investigators were a must.

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In a civil law legal system such as Cambodia’s, much of the investigative work is traditionally carried out by the judicial police, so another key early task was to assess the extent to which Cambodian judicial police would be available to assist in the fieldwork.24 The co-prosecutors and co-investigating judges gathered during that second week of July with senior officers from the KRT’s Security Commission, which had been appointed by the government to oversee all issues having to do with security and police matters. The trio of three-star generals was prepared to address the issue of judicial police. Cambodia’s deputy chief of police assured the KRT officers that he had a roster of seventy-two specially trained judicial police ready to go on a moment’s notice. Not to be outdone, a second three-star, head of the National Gendarmerie, announced that he had a force of five hundred specially trained commandos who would be dedicated to any needs of the KRT investigators. “Very well,” International Co-Prosecutor Robert Petit replied. “Please deliver to us a list of the names of all these personnel; then we will decide which of them we need to assist us, and we will inform you accordingly.”25 “A list of personnel,” responded the three-star. “Yes, sir! I will get that to you soon.” There was a slightly pregnant pause, and then International Co-Investigating Judge Marcel Lemonde dryly inquired, “What precisely do you mean by ‘soon’? Is that a ‘next month’ soon, a ‘next year’ soon, or what?” “Oh!” replied the general. “Very soon! Next week, for sure. Maybe even this week.” And with that, the meeting moved smartly along to the next agenda item, which concerned apprehending suspects. The generals noted discreetly that they were fully prepared to carry out arrests, in anticipation of which they had taken the liberty of tapping the phones of Nuon Chea, Ieng Sary, and Khieu Samphan—apparently oblivious to the fact that such tactics are prohibited by the Constitution of the Kingdom of Cambodia,26 not to mention that neither the co-prosecutors nor the coinvestigating judges had yet designated any potential suspects.27 The next week came and went, and still there were no lists of judicial police or commandos to be seen. What was seen, however, were reports in the media that the Documentation Center of Cambodia had offered to provide training to the judicial police assigned to assist the investigations at the KRT, and that the Security Commission had accepted this generous offer. The training was to be organized by a college student from Seattle, Washington—she apparently at one time had been a police officer—and carried out under the direction of the staff of the Documentation Center,

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all with no consultation, coordination, or even notice to the officials of the KRT. International Co-Prosecutor Petit was unperturbed. Okay, he told his staff, we will find out who these seventy-two judicial police officers are, and then inform the Security Commission that they have been contaminated and we have no use for them. Meanwhile, always keen on publicity, the Documentation Center invited journalists to observe the training. Reporting on the first batch of twelve policemen to complete the training, the daily French-language news service Cambodge Soir painted an unflattering portrait. During a field exercise to assess their competence, the officers trampled on human skeletal remains and clothing scattered at a mass grave site, and then watched, smoking cigarettes, as local children played with the evidence.28 But there was still the matter of the lists of judicial police and commandos from the Ministry of Interior that had been promised by the threestar generals. Some six weeks after “next week, for sure,” no lists had yet materialized. Well into his second month of investigations, International Co-Prosecutor Petit was now becoming annoyed about the lack of timely cooperation from the Ministry of Interior. He tracked down the one-star general who was the full-time liaison from the Security Commission to the KRT and demanded action on the lists. No problem, the co-prosecutor was assured, he would have those lists later that week, next Monday at the latest. Monday came and went, and now the one-star was said to be indisposed, on sick leave. Petit escalated to the three-star who had originally promised the lists; he assured the co-prosecutor that he would have his man get with him the very next day. “No problem,” the general said. The next day, a timidlooking colonel arrived at Petit’s office. “List?” the colonel queried. “What list?” There is no list, he explained. There can be no list, because no judicial police have been assigned to you. There will be no list. And that was pretty much that.29 The issue was soon escalated to the KRT’s Office of Administration, and then further escalated to the political level, in the form of the donor community, but it would never be properly resolved.30 Indeed, with time, it would get rather worse. The international co-prosecutor was determined to forge ahead, regardless of the degree of cooperation he received from the Ministry of Interior. Partly in response to Judge Ney Thol’s insistence that the co-prosecutors proceed on the basis of the case files that he had assembled at the military court, Robert Petit told journalists, “We will begin our work with a blank

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slate and build our cases based on the information we discover over the next weeks and months.”31 He went on to caution, however, that the process of assembling cases would be complex and would likely require at least months of work.32 But not everyone was as bullish as he about the prospects for success in the work ahead. Brad Adams of Human Rights Watch opined, “I think that there are reasons to think that this whole process will fail.”33 Within days of the OCP’s establishment, Morten Bergsmo of the PRIO Research Institute in Oslo arrived at the office to donate a newly developed case management software system named Case Matrix, originally developed for the International Criminal Court.34 For OCP’s two international investigators—neither of whom had much in the way of formal legal training—it was a godsend. Case Matrix was a database that elaborated in detail the elements of the crimes covered by the complex laws used in internationalized jurisdictions, such as crimes against humanity, allowing the investigators to organize their evidence systematically in a way that enabled them to build the case while being certain they had all of the factual material necessary to prove each element of the crime in question. Given the decades of study Steve Heder and I had already devoted to the facts of the Khmer Rouge regime, Case Matrix allowed us to assemble, literally in a matter of days, comprehensive evidentiary presentations for a variety of criminal charges. When, on July  18, the national and international co-prosecutors formally agreed to begin investigating cases, the international investigators were ready to hit the ground running.35 The same day, we walked across the hallway to the national co-prosecutor’s office, fired up her computer, logged onto Case Matrix, and showed Co-Prosecutor Chea Leang and her national staff how we had already assembled the legal elements and supporting evidence for a charge of crimes against humanity. Although most of the national staff members in the Office of Co-Prosecutors were not yet comfortable with modern technology, one assistant prosecutor on Leang’s staff was something of a computer wizard, and he immediately grasped the utility of the demonstration. Cooperation between the nationals and the internationals in OCP began to gel that day, and grew stronger with each passing week. The next phase was to begin preparing for witness interviews. The entire team was on board.36 As the tribunal creaked to life, senior Khmer Rouge leaders began to betray signs of anxiety. The day after the OCP opened for business, former

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Khmer Rouge Head of State Khieu Samphan loaded his furniture and his wife into a truck and drove away from his home in the dead of night. A couple of hours later, former Khmer Rouge Deputy Prime Minister Ieng Sary and his wife, Ieng Thirith—the former minister of social affairs—also drove away from Pailin, headed for parts unknown. Rumors immediately spread that Sary and Thirith were en route to Beijing and from there to North Korea or Cuba, or somewhere else beyond the reach of the law. Nuon Chea, known as the Khmer Rouge “Brother Number Two,” reportedly had fled two days before that. But it was all a false alarm. Samphan was attempting to escape the swarms of journalists who had been hounding him by hiding out with a relative.37 Ieng Sary and Ieng Thirith were in fact merely relocating to their villa in Phnom Penh. Nuon Chea had checked himself into a hospital in nearby Battambang for treatment.38 But they were being closely watched, and not only by the Ministry of Interior’s electronic surveillance. The Documentation Center had launched a project dubbed “Khmer Rouge Watch,” and was closely tracking the activities of the former leaders.39 Cambodian journalists were also on the hunt, so much so that they drew a public rebuke from ruling party spokesperson Khieu Kanharith. The media was “psychologically harassing” the former Khmer Rouge leaders by tracking their every move, Kanharith said, adding that this “is like giving them a weapon to say that the court is biased.” 40 All of this was the source of some considerable mirth, but the laughter came to an abrupt halt eleven days after the OCP began its work, when former Khmer Rouge military chief Ta Mok died in the custody of the Phnom Penh Military Court on July 21, 2006. Mok, suffering from tuberculosis, high blood pressure, and respiratory problems, had been transferred to a military hospital on June 29, then lapsed into a coma.41 On July 18, his attorney Benson Samay reported that he had improved dramatically, regained consciousness, and was speaking and eating.42 Civil society organizations, however, were worried. The Cambodian Human Rights Action Committee had called for Mok to be transferred to a facility with more modern capabilities than were available at the military hospital.43 Having neither charged nor as yet even thoroughly investigated Mok, the co-prosecutors and other officials at the KRT had no authority to intervene in his health care. When Mok expired a few days later, the bitterness among victims of the Khmer Rouge was palpable. “I blame the court for the slow process,” said

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FIGURE 7.1. ECCC organization

Bou Meng, one of the few remaining S-21 survivors, as he lashed out at the KRT.44 According to Deputy Director of the Military Court Pok Pon, however, it was not really a problem. “We have his confession document, his lawyer also recognized the confession,” said Pok Pon. “If Ta Mok dies the Khmer Rouge tribunal can still use the documents. We have collected 50 percent of his confession.” 45 In fact, when the OCP finally obtained the case file on Mok that had been assembled by military court investigators, it was nigh on useless. The dossier was dilatory, episodic, incoherent, and totally unfocused. Investigations at the KRT would have to proceed without whatever might have been learned from Ta Mok. RULES

For years during the lead-up to the establishment of the KRT, there was great controversy over a fundamental issue: how would the new court handle the question of Rules of Procedure and Rules of Evidence for the Extraordinary Chambers? Some in the Cambodian government felt that the Khmer Rouge Tribunal should simply use existing “procedures in force,” as specified in the 2001 tribunal law. Others felt that because Cambodia’s existing civil law system did not have precisely specified provisions on

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evidence, a supplementary document of some sort would be required. Moreover, nothing in existing Cambodian procedure contemplated components such as co-prosecutors or co-investigating judges. If a unique set of rules for the KRT were devised, could that document simply be adopted by the judges of the Extraordinary Chambers as one of their first orders of business, as some maintained? Or would such a document qualify as a law and consequently have to be promulgated by the National Assembly, as others maintained? There were no clear-cut answers to these questions, and they were never really answered during the court’s preparatory phase. When the judges assembled for their initial plenary at the beginning of July 2006, however, it was clear that answers must be forged if the enterprise was to go ahead. As Co-Investigating Judge Marcel Lemonde observed, having the judges adopt their own rules of procedure was tantamount to judges legislating, which was far from ideal from a separation-of-powers perspective. But the bottom line was that they had no choice.46 Necessity had become the mother of invention. As International Co-Prosecutor Petit put it, quoting Sok An, the KRT had been granted the power “to create, adopt and amend such internal legislation” as might be necessary to regulate the operations of the tribunal.47 Actually, however, the government’s tribunal Task Force had envisaged just such a turn of events. The Task Force had spent years working with American lawyer Gregory Stanton to develop a detailed set of “Draft Internal Procedures and Regulations.” Stanton explained to the judicial plenary how he had produced the draft, based on various Cambodian legal sources as well as comparisons to other internationalized criminal tribunals, including the International Criminal Court, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone. He also described the subsequent vetting process involving foreign and Cambodian legal experts, as well as some of the judges who were ultimately appointed to the court. In the final analysis, however, Stanton emphasized that the judges as a group must take full ownership of the document. “I agree that a proper legal process is necessary for the formulation of internal rules for the Extraordinary Chambers, and that is surely not something that I can do. You judges must do it,” he told the plenary.48 Just before the initial plenary, the Task Force provided copies of Stanton’s draft of the Internal Rules to all the judges. Judge Lemonde felt that the draft contained too many errors. “We’ve seen that there was a problem

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with the definition of police custody and pretrial detention,” Lemonde explained at the plenary. “It is the same with the definition of suspect and accused. There are other examples. We have to be very precise in the notions we use.” 49 Petit proposed that the draft criminal procedure code, still working its way through Cambodia’s legislative process, would make an appropriate starting point for crafting the KRT’s Internal Rules. “What if,” he asked as he held up a copy of the draft code, “as a basis for our discussion, we start with this? We use it as a project for internal rules of procedure, with the proper modification,” he began. “So, we could start with this. . . . It is in three languages, which is also handy for our purpose. Take the things that don’t apply to us and take them out. Take the things that are problematic from international standards and change them. And add anything we need.”50 “I agree with this process,” replied Lemonde. “I’m really sorry that the draft, the last version from Stanton, was sent too late to be translated into Khmer.”51 The Polish judge, Agnieszka Klonowiecka-Milart, thought that Stanton’s draft Internal Rules were close enough, but agreed that the KRT’s procedures should be as close as possible to Cambodian procedure. “Either the Stanton or the national draft could be used as the basic document,” she said. “But certainly the draft code should be controlling, and refer to Stanton for specifics that don’t match the framework for regular courts.”52 This view was supported by the New Zealand judge, Silvia Cartwright, among others, and eventually prevailed.53 The participants concluded that they must craft their own rules of procedure, but that it was far too complicated an undertaking for a four-day plenary, so a Rules Committee was formed to carry the project forward. The national judges appointed to the Rules Committee were Co-Investigating Judge You Bunleng, acting as co-chair of the committee, Pre-Trial Chamber President Prak Kimsan, and Trial Chamber Reserve Judge Mong Monichariya, who was selected because of both his legal expertise and his English language skills. The internationals were represented on the Rules Committee by Co-Investigating Judge Marcel Lemonde (also co-chair) and Supreme Chamber Judge Agnieszka Klonoweika-Milart. The committee also would be assisted by the Legal Counsel to the Deputy Director of Administration, Giovanni Bassu, and Judge Lemonde’s legal advisor, David Boyle. Greg Stanton would serve as the resource person for the committee. By mid-July, the rule-drafting process was under way. However, because the international judges were not yet resident in Cambodia full-time, most

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of the initial work was carried out via email. You Bunlung and his staff oversaw the process from Phnom Penh, with Bassu and Boyle coordinating communications among the Cambodia-based national judges and the farflung internationals, while managing change control and translations. “I don’t think it was very bumpy,” recalled Judge Milart. “There was not much contentious stuff.”54 Judge Lemonde, however, felt that the discussions with their national colleagues tended to run “hot and cold.”55 By early September, a rough draft of the rules having been cobbled together, Milart and Lemonde returned to Phnom Penh for a face-to-face review of the text with the Cambodian judges of the Rules Committee. The evening before the meetings were to begin, Judge Lemonde privately expressed his confidence that the committee would finalize the rules over the course of the four days of scheduled meetings.56 That confidence was misplaced. The four days stretched into ten days, and still the committee had managed to review less than a third of the 100-some rules. One controversial rule that consumed nearly a full day of debate concerned the question of whether there were, should be, or could be any investigators in the Office of Co-Prosecutors— that is, whether I and my colleagues officially existed and the work we were doing was valid.57 This particular issue would resurface again later. In a press conference held after the meetings, Lemonde characterized the work of the committee as “difficult,” adding that he hoped the finalized rules would be made publicly available at the beginning of October.58 There were some external governmental pressures on the rules-making process. One member of the Rules Committee noted that there was stiff insistence by the French embassy that the rules for the tribunal should closely mirror the French legal system. This was a matter, she said, “of asserting the French system in the world.”59 The Japanese and U.S. governments also closely followed the rule-making process at the KRT, although they made no apparent attempts to influence the actual content of the rules.60 Notwithstanding the various difficulties, the Rules Committee pressed ahead with its assignment. The early October target for making the draft Internal Rules available to the public for comment slipped, but by October 23, the draft had solidified enough that it was distributed to other parties within the court for internal comment.61 The public release had been announced for November 3, but a technical glitch on the court’s website delayed the availability of the draft for another several days.62 Given the November  17 deadline for comments, time was short for interested

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observers to analyze the complex text and submit suggestions to the Rules Committee.63 The brief public comment period would draw international criticism.64 A plenary of all the KRT’s judges was scheduled from November 20–25 to review and presumably approve the final version of the Internal Rules.65 On the appointed day, the national and international officers of the KRT gathered at the Cambodia-Japan Cooperation Center in Phnom Penh for the second formal Plenary Session of Judges of the ECCC. As the moderator gaveled the session to order and proposed to begin with adopting the agenda for the six-day meeting by acclamation, Supreme Court President Kong Srim interrupted him and sought the floor. Judge Srim proceeded to deliver a lengthy intervention later characterized by the international cochair of the Rules Committee as “very hostile.” 66 Judge Srim began by denouncing the “so-called agenda” as having been illegally prepared and being improperly imposed on a “sovereign Cambodia”—neatly eliding the fact that it had been largely drafted by one of his national colleagues.67 He then segued into a denunciation of the proposed working hours for the plenary, which had been scheduled to go from 8 a.m. to 12 p.m. and 1 p.m. to 6 p.m. over six days, insisting that “traditional” Cambodian working hours were from 9 to 11 in the morning and from 3 to 5 in the afternoon, and that insofar as we were operating “in the courts of Cambodia,” Cambodian tradition must be respected.68 As for the plenary convening on a Saturday, Srim continued, this constituted a personal affront to the national judges, because they were all required to hold second jobs on the weekend in order to make ends meet.69 Speaking of making ends meet, Srim added, it was outrageous and unfair that international judges were being compensated a rate double that of the national judges.70 So, Judge Srim concluded, if the plenary was unable to complete its work by the end of the week, while respecting traditional Cambodian working hours, then the foreigners would just have to extend their visits and continue working into the subsequent week. This last comment elicited a round of applause from the national judges.71 Having thoroughly demolished the agenda, Judge Srim was not quite done. He turned his gaze to the other side of the room, upon a British barrister named Rupert Skilbeck, who had been appointed by the UN as the principal defender, responsible for establishing and operating the Defense Support Section of the tribunal. “You do not exist,” Srim thundered. “Who

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let him in here?” He demanded that Skilbeck be expelled from the plenary and that his office be stricken from the Internal Rules, on the grounds that “It is illegal” and a violation of Cambodian sovereignty.72 His intervention complete, Judge Srim turned the floor over to his colleagues. The other national judges then proceeded, one by one, to elaborate on the revealed calumny with variations on the theme that essentially everything being done by internationals at the court was a violation of Cambodian sovereignty, and contrary to Cambodian law. When the turn came for National Co-Prosecutor Chea Leang to speak, she focused her fire on the international investigators in the Office of Co-Prosecutors, with whom she had been cheerfully and productively collaborating from early July up until the very previous working day, November 17. Any attempt by them to investigate anything is illegal, she began, and any so-called investigations they may carry out are null and void, and have no legal or evidentiary value. Moreover, she continued, if these foreign individuals wish to do anything, they must receive prior, written authorization from the Ministry of Interior. “The Ministry of Interior?!” blurted out one of the international judges. “What do they have to do with this legal proceeding?”73 But there would be no answer until the national judges had run through their script, nor indeed after. As Judge Lemonde would later reflect, “With hindsight, they were telling us that the Cambodians did not want the Internal Rules adopted at this session. Clearly, the instructions were to scuttle the talks.”74 This realization, however, had not yet dawned on the internationals. In the afternoon session on that first day of the plenary, nongovernmental organizations that had submitted comments on the draft rules were invited to give brief presentations. These were mostly pro forma and uncontroversial, but among those presenting was Ky Tech, the president of the Bar Association of the Kingdom of Cambodia. When he began speaking, it quickly became apparent that his remarks were closely synchronized to those that the national judges had made in the morning. Tech asserted that the court’s Defense Support Section was “illegal,” and that its existence violated the “sovereignty” of the bar association. Just how a nongovernmental organization is imbued with sovereignty was not explained, but he insisted that “Those who seek to set up the defense unit are trying to create a state within a state, which is unacceptable.”75 Only the bar association had the authority to regulate lawyers working at the ECCC, he insisted. Further, Tech explained to journalists, the bar association had the right to control

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all training of lawyers in Cambodia.76 Later in the week, Tech sent letters to all members of the bar association, threatening disciplinary action against any Cambodian lawyer who attended a training session that had been organized by the Defense Support Section and the International Bar Association, which had been scheduled to commence on November 27.77 Outside observers were quick to question Tech’s role at the tribunal. “We know the bar president has connections to the government,” said U.S. Ambassador Joseph Mussomeli. “It’s worrying since he has spoken in such a strident manner.”78 Responding to the threats against Cambodian lawyers who had been planning to attend the training session, the International Bar Association (IBA) indicated that it believed there was more to the problem than met the eye. “The prohibition by the Cambodian Bar is part of a wider scheme of opposition designed to obstruct the operation of the tribunal,” the IBA said in a statement.79 Brad Adams, the Asia Director for Human Rights Watch, was more direct: “It is a clear attempt by Hun Sen to maintain control over what is supposed to be an independent judicial process.”80 Some Cambodian civil society leaders agreed, and were willing to say so on the record. “The Cambodian Bar Association would not be this persistent and vocal—pronouncing policy statements on issues that are arguable and rooted on unsteady legal basis, risking membership with the International Bar Association, drawing negative press not only nationally but internationally—if there was no backing from higher up,” said Theary Seng of the Center for Social Development. “This type of audacity rarely occurs here without a reliance on political support from the powers that be.”81 According to some observers, Ky Tech was known to count Bun Rany, Prime Minister Hun Sen’s wife, among his private practice clients.82 Back at the judicial plenary, things were going from bad to worse. On Tuesday, November 21, the nationals and internationals found that they could not agree on anything, neither how to proceed nor even a voting mechanism should they eventually get around to agreeing to bring something to a vote. By Wednesday, the internationals were so frustrated that some of them threatened to go to the UN Secretary-General and advise him to withdraw from the process.83 Cooler heads prevailed, but by the end of the week, precisely nothing productive had been accomplished. A press conference originally scheduled for Saturday, putatively to announce the adoption of the Internal Rules, as well as a subsequent banquet that evening, were both summarily canceled. With great effort, a joint press release

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was prepared, saying, “We regret to announce that we have been unable to complete our task of adopting Internal Rules for the Extraordinary Chambers in the Courts of Cambodia.”84 The statement vaguely continued, “During this Plenary Session we discussed general matters. . . . We have also become aware that we have some basic differences.”85 Thus the statement successfully masked the failure of the plenary to achieve any substantive progress. Indeed, the court had clearly lost significant ground. In the wake of the failed plenary, the international officers of the court all had two questions: What in the world had just happened, and how could it be fixed? International Co-Prosecutor Robert Petit pronounced himself mystified. A veteran of four other internationalized tribunals, he had never seen anything like this. “I have no precedent to ascertain what to do. We have not had problems like this before—even in hybrid courts. This is completely different.”86 What the internationals couldn’t know at this juncture was that things would get much worse before they got any better. PRELIMINARY INVESTIGATIONS

Meanwhile, despite the apparent dysfunction in the judicial management of the court and the declaration by National Co-Prosecutor Chea Leang at the plenary that her own staff was not permitted to conduct investigations, operations in the Office of Co-Prosecutors (OCP) were moving ahead briskly. The co-prosecutors had agreed in July that the Request for Investigation they would eventually send to the co-investigating judges should reflect the full range of crimes committed during the Khmer Rouge regime.87 The international investigators were convinced that they could assemble a compelling dossier of evidence that would demonstrate a wide range of crimes, including genocide against the Vietnamese and Cham minorities in Cambodia, a plethora of different types of crimes against humanity, massive war crimes, religious persecution, torture, and murder. Because these crimes were essentially committed virtually everywhere in the country, every day that the regime existed, it was far beyond the realm of possibility to attempt to identify and prosecute each and every one. Thus, one analytical problem facing the prosecution team was to find clear examples of each type of crime that could be documented in enough detail to build a compelling case. A second analytical problem was identifying the

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individuals who were personally responsible and assembling evidence that linked those individuals to those crimes. “Personal jurisdiction” defines who is liable to be prosecuted by a court. The personal jurisdiction of the KRT was described in the court’s foundational documents as “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.”88 In shorthand, this resolved down to “senior leaders” and those “most responsible.” Those are diplomatic terms of art, rather than precise legal categories, so how to translate them into operational definitions was not a straightforward question. For example, just how senior did one have to be in order to be considered a “senior leader”? Certainly, the category would include members of the Standing Committee of the Communist Party of Kampuchea (CPK), comprised of only a handful of people, which was the final arbiter of policy in Democratic Kampuchea. But did it also include members of the Central Committee? The co-prosecutors decided that it did. Did it also include ministers of government departments, such as Commerce, Agriculture, and so on? What about military leaders? It would certainly include people such as the chief of the General Staff, but did it also include other members of the General Staff or secretaries of divisions, many of whom were very powerful in their own right? So even such a seemingly simple term was fraught with ambiguity. The other prong of OCP’s personal jurisdiction—“most responsible”— was even more ambiguous. In principle, this category included virtually anyone who could be shown to have committed particularly heinous crimes, regardless of their formal rank in the regime’s leadership hierarchy. The Khmer Rouge regime was organized, top to bottom, from the “Party Center,” which included the Standing Committee of the CPK, to six or seven large geographical entities known as “Zones” (the “Old North Zone” was split into the “New North Zone” and the “Central Zone” about halfway through the regime, bringing the count to seven zones), which in turn were subdivided into “Sectors,” also sometimes referred to as “Regions,” then into “Districts” and “Subdistricts,” also known as “Communes.” A Commune was a collection of villages. As the revolution progressed, the Commune and

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village echelons were gradually reorganized into “Cooperatives.” OCP investigators believed that a great deal—possibly most—of the killing occurred at the District echelon, so in theory, “most responsible” perpetrators might be found quite far down in the Khmer Rouge organizational hierarchy. Co-Investigating Judge Marcel Lemonde at one point suggested that the court could not let “very serious criminals” escape justice. “We couldn’t (just) say, ‘well, there are too many defendants, and this person is supposed to have killed 1,000 people but we won’t deal with him,’ ” Lemonde told reporters.89 If the threshold for indictment at the ECCC were indeed to be a thousand people killed, then the KRT would be prosecuting a very, very large number of individuals. In the final analysis, however, the definition of “most responsible” was a policy decision that the coprosecutors had to make for themselves. Another key decision facing the co-prosecutors was precisely how many individuals they would propose to indict. During the diplomatic negotiations to create the KRT, negotiators frequently spoke in terms of “five to ten” persons in total being prosecuted by the court, but they were usually quick to add the caveat that the final number could only be determined by the co-prosecutors. For example, in October 2004, Deputy Prime Minister Sok An told journalists, “We do not know how many leaders of the KR will stand trial, it is dependent on the prosecutors, but it will be up to ten.”90 By far the most careful study to date on the question of KRT personal jurisdiction was done by Steve Heder, who concluded, By the end of 2003, the UN had agreed with the [Royal Government of Cambodia] that “for the purpose of workload planning and resource-needs estimation, a range of from 5 to 10 indictees” was “assumed.” In this regard, Kofi Annan stressed that “it will be the prerogative of the co-prosecutors and co-investigating judges, within the parameters of the Agreement” establishing the court, “to decide exactly who is to be investigated and prosecuted.”91

Despite this apparent agreement at the political level on the contours of personal jurisdiction, how many people, and which ones, ultimately were to be prosecuted by the KRT would become the single most controversial matter that the tribunal would face. One thing that made these decisions a little easier for the co-prosecutors was the fact that thirty years after the fall of the Khmer Rouge regime,

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there simply were not very many senior leaders remaining alive to answer criminal charges. Nuon Chea, also known as Brother Number Two after his position in the CPK hierarchy, had been deputy secretary of the party and would be on anyone’s list of candidates for prosecution. It has been said that Pol Pot and Nuon Chea performed a good cop/bad cop act, and Chea was the bad cop, responsible for internal security. He was in charge of education, a term that became synonymous with execution under the Khmer Rouge, and organizational matters within the party, including discipline, which was harsh in the extreme. From late 1977 through the end of the regime, the notorious S-21 Security Office was under his direct command. Ieng Sary was deputy prime minister of the Khmer Rouge state, as well as foreign minister and a full member of the party Standing Committee. He too was an obvious candidate. He had been a member of the all-powerful Standing Committee since the party was founded in 1960. During the Khmer Rouge regime, Sary had played a key role in luring overseas Cambodians to return to the country, where many of them were immediately sent to S-21 for interrogation, torture, and execution. Many of his staff at the Ministry of Foreign Affairs ended up there as well. Sary’s wife, Ieng Thirith, was a longtime militant of the party and served as the minister of social affairs. Although her name did not always appear on lists of potential targets circulating in the media, those with deeper insight into how the regime operated considered her to be a potential candidate. For one thing, Thirith was instrumental in the destruction of the country’s modern medical system; doctors and nurses were replaced with illiterate peasant children who had been trained to give injections, often of nothing more than coconut juice, and the nation’s pharmaceutical factories, staffed with ignorant children, churned out putative “traditional” medicines that often seemed to have no effect at all. She also delivered a key report to the Standing Committee that played a significant role in sparking the vicious purges of the Northwest and East Zones. Khieu Samphan had been president of the Presidium of Democratic Kampuchea, succeeding Prince Sihanouk as head of state. He was not a member of the Standing Committee, but interestingly, he attended most of the Standing Committee meetings for which detailed records survived, and he sometimes had a speaking role at those meetings. In training cadres of the party and representing the regime abroad, he was an outspoken promoter

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of the Khmer Rouge ideology and defender of Khmer Rouge policies. That made Khieu Samphan a potential candidate for prosecution. After those four, however, the list of possible senior leader targets grew thin. Khmer Rouge supreme leader Pol Pot was long gone by the time the KRT came into being, having died in 1998. Shortly before Pol Pot’s death, he had ordered the execution of two more prime candidates for prosecution, Son Sen and Yun Yat. And of course, a swathe of the CPK Standing Committee members—including Vorn Vet, Sao Phim, and Ruos Nhim— had already been eliminated during the regime. Two additional prime candidates for prosecution, Ta Mok and Ke Pauk, who were secretaries of the Southwest and Central Zones respectively—and in Mok’s case, also a key member of the Standing Committee—had expired of natural causes while the tribunal negotiators labored toward convening actual trials. Even so, depending upon exactly how one defined “senior leader,” there were indeed more candidates lurking in the shadows. Initially, OCP investigators had identified as many as thirty potential suspects, but by mid-October 2006 that list had been pared down to fifteen individuals who were thought to warrant more detailed scrutiny.92 They included some relatively obscure individuals who were certainly not household names in Cambodia or even among many veteran Cambodia watchers, but who appeared to have been deeply involved in a variety of heinous crimes. Most of them would be classified as candidates to be designated as “most responsible,” given the dearth of senior leaders remaining alive. Part of the process of piecing together the puzzle was matching the list of potential suspects with the set of crimes—known in the business as the “crime base”—that prosecutors planned to put forward in order to illustrate the range of criminality during the Khmer Rouge regime. This challenge would occupy OCP investigators and prosecutors well into early 2007. WRESTLING WITH THE RULES

Attempting to recover momentum toward agreement on the Internal Rules for the court after the chaotic November plenary, the judges agreed to expand and rename the Rules Committee, which now became designated as the Rules Review Committee. Two Cambodian judges—Sin Rith and Kong Srim—along with two international judges—Silvia Cartwright and Claudia Fenz—were added to the existing five judges who had composed

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the previous committee.93 A rump meeting of the Rules Review Committee, absent Judges Cartwright, Fenz, and Klonowiecka-Milart, was held on December 15 and 18, attempting to identify areas of agreement and conflict between the national and international judges.94 A full meeting of the reconstituted committee was planned for mid-January. From the perspective of the international judges, the committee was primarily facing a set of technical issues. There were several key unresolved matters, starting with the question of how to deal with civil parties. Then there were the matters of the powers of the co-prosecutors, and whether to permit trials in absentia, as authorized under Cambodia’s civil law system.95 Finally, there was the vexing issue of the role of the Defense Support Section and the credentialing of foreign defense attorneys, made all the more complex because the issue was being pressed by an entity outside of the court, the Bar Association of the Kingdom of Cambodia. That last matter had become even more complicated in December. Deputy Prime Minister Sok An seemingly endorsed the objections of Bar Association President Ky Tech when he wrote to UN Legal Counsel Nicolas Michel on December  5, raising the issue to the political level. Sok An explained to Michel that the role and management of the Defense Support Section, as well as its relationship to the bar association, had not been properly dealt with in the UN-Cambodia agreement on the tribunal, so he was requesting a resumption of negotiations to help resolve the issues that had arisen. The concept of the Defense Support Section “seems to have evolved within the thinking of UNAKRT and staffing and budget requirements were developed without any reference to the Cambodian side,” Sok An complained. Consequently, he continued, the resulting problems have led to “an extremely difficult situation with a significant impact on the entire ECCC.”96 On the same day that Sok An wrote to the UN legal counsel, Human Rights Watch issued a statement alleging that the bar association was “politically controlled” by its “government-backed” leader—Ky Tech— and that the entire controversy over foreign defense lawyers constituted government interference aiming to obstruct the work of the tribunal.97 Amidst this roiling atmosphere, the Rules Review Committee convened on January 16, 2007. On that first day of the ten-day conference, the national judges demanded that a new element be added to the Internal Rules, an element characterized by some internationals as “political.”98 The national side wanted the rules to explicitly state that in addition to “justice,” coequal

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goals of the KRT were “peace, stability, reconciliation and social harmony.” After some consideration, the international judges decided that if this new formulation—“justice and national reconciliation, stability and social harmony” as the goals of the court—were added to a preamble, it would be acceptable.99 After that reasonably smooth start, the mood on the committee darkened dramatically on the second day. It began when the national judges insisted that foreign defense attorneys could only function as assistants to Cambodian attorneys. For the internationals, that was a deal breaker all by itself, given their commitment to equality of arms and fair trial standards. But then the Cambodian judges dropped the real bombshell. They informed their international colleagues that on the issue of appeals when the coinvestigating judges referred suspects for trial--that is, the issue of Closing Orders—the supermajority voting rule should be reversed. As it stood in the draft rules, as well as in the UN-Cambodia tribunal agreement,100 halting a disputed prosecution required a supermajority—i.e., four of the five Pre-Trial Chamber judges. Now the national judges were demanding that a supermajority vote be required for the prosecution to go forward. That would mean that two or three national judges voting together could stop any prosecution, which was precisely what the supermajority mechanism was supposed to make impossible in the first place. At the conclusion of the deliberations, Judge Lemonde informed his national colleagues that if this was their final offer, then the international judges would have no other option than to recommend that the UN withdraw from the tribunal process.101 Fear of the abyss calmed everyone’s nerves ever so slightly, and on the third day of the meetings, agreement was reached on several minor matters. That evening, the national and international judges dined together in a relatively relaxed mood—but that improved mood would not last long. On Friday, January 19, over the objections of the international judges and at the insistence of the national judges, Bar Association President Ky Tech was invited to address the meeting on the issue of why foreign defense attorneys could not practice at the KRT. Tech turned in a spectacular performance. He began by conceding that foreign attorneys could indeed practice at the KRT, but there would be a number of conditions. First of all, each foreign attorney seeking to practice at the court would have to be personally approved by Ky Tech himself. There would be a $3,000 application fee when attorneys sought to be admitted to practice. If one was in fact selected

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to represent a client at the KRT, there would be an additional fee of $200 per month. Foreign attorneys would also have to agree not to speak to any journalists—a demand that Tech noted would also apply to the international co-prosecutor. Foreign attorneys would be permitted to function only as assistants to Cambodian attorneys. The bar association of the foreign attorney’s home country would have to agree in writing that Cambodian lawyers would be admitted unconditionally to practice law in that country, and moreover, should any similar tribunal be established in that country, Cambodian lawyers would be permitted to participate. When Ky Tech had finished listing his demands, according to one international member of the Rules Review Committee, it was obvious that he could not have said such things without authorization from top political authorities.102 It was now becoming clear to the internationals that the problem with the rules was more than a matter of technical issues.103 The week’s discussions came to a close with Judge Cartwright issuing an ultimatum on behalf of the international judges. If there was no movement on the defense counsel and Closing Orders issues, the international judges were prepared to resign and recommend a UN withdrawal. As Ky Tech was preparing to address the Rules Review Committee at the KRT that Friday morning, David Scheffer was arriving at Pochentong International Airport just a few miles down the road. Sensing that the committee meeting was headed for disaster, earlier in the week a small group of KRT staff persuaded the Cambodian Justice Initiative—an international NGO monitoring the court—to fund Scheffer’s travel so that he could come and intervene at the political level in an attempt to pull the committee’s deliberations back from the brink.104 Scheffer spent Friday being briefed by various staff and observers of the court, prior to his hastily scheduled meeting with Deputy Prime Minister Sok An on the weekend. Scheffer, of course, was a central player in negotiating the establishment of the court, and he had created a sense of trust with Cambodian officials, particularly Sok An. On Sunday, Sok An invited David Scheffer to his farm for what would turn out to be a marathon negotiating session. The KRT’s Director of Administration, Sean Visoth, took notes. The central issue turned out to be that the Cambodians were afraid of overreach by the international coprosecutor—hence the proposal to reverse the supermajority rule in the Pre-Trial Chamber, which would give the nationals a mechanism to stop

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undesired prosecutions. The supermajority rule had been the key compromise that had allowed the UN to agree to the court in the first place, however, so Sok An and Scheffer would have to find another way to resolve this concern. Scheffer suggested adding stronger language to the preamble of the rules. Instead of saying that the goal of the tribunal was “justice and reconciliation,” as the national judges had insisted the previous week, they could make the language even more pointed, casting it as “mindful of the continuing and legitimate concern of the Government and the people of Cambodia to pursue justice and national reconciliation, stability, peace, and security.”105 This reflected the government’s worries that too many prosecutions could destabilize the reintegrated former Khmer Rouge zones. Moreover, another new paragraph in the preamble could state, acknowledging the very limited capabilities, resources, and duration of the Extraordinary Chambers and the requirement that it bring to trial only the senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.106

But these suggested tweaks to the preamble of the rules were a thin reed upon which to hang an assurance that there would be no runaway prosecution. At the same time, Scheffer extracted some assurances of his own.107 Article 21(3) of the UN-Cambodia tribunal agreement recognized the participation of foreign defense counsel at the KRT, and this must be respected.108 There must be no reciprocity requirement, and no powers given to the bar association to discipline foreign defense counsel. There must be immunity of counsel in respect of actions taken in defense of their clients, with disciplinary control exercised by the Extraordinary Chambers itself. And there must be no provisions for counsel to clear public statements with Ky Tech. In absentia proceedings must only occur after the accused had first appeared in court, and even then, only with the participation of defense counsel. On the supermajority vote issue, Sok An and Scheffer agreed that a prosecution would go forward if there was a Closing Order to indict, and that the accused would have no right to challenge an indictment in the Pre-Trial Chamber. However, the Internal Rules could be tweaked to emphasize the “defendant’s due process rights and dignity,” both in the preliminary and

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judicial investigations.109 Finally, they agreed to consider eliminating the idea of the Victims Unit, which was intended to provide support for complainants, civil parties, and other victim witnesses, which Sok An felt was a “pressure point” coming from certain NGOs and judges, but for which there was really no strong public interest. Scheffer did his best to persuade Sok An that the threat of a “runaway” prosecutor was in fact a “non-issue.”110 Monday, January 22, dawned uneasily on the Khmer Rouge Tribunal. The international judges were aware that there had been discussions at the political level over the weekend and were anxious to see if there would be any changes in the positions of the Cambodian judges. The day’s discussions in the Rules Review Committee meeting seemed to proceed with a more reasonable tone, but no substantive progress was registered. The assurances that Scheffer had provided to Sok An would not be adequate to cause an immediate evolution of the Cambodian position, but they were enough to create an opening. Late Monday afternoon, Director of Administration Sean Visoth granted an interview to New York Times Southeast Asia Bureau Chief Seth Mydans. Midway through, Visoth summoned me to join the interview, which, though Mydans and I were old friends, I thought was rather odd. When I arrived, Visoth was in the process of giving Mydans a very negative assessment of the situation at the court. “The gulf is so wide,” Visoth told Mydans, “I don’t think we are going to make it. International judges are getting ready to resign! It looks like it is all over, and the end will be on Friday.”111 Then Visoth said, “Okay, I’m going to lay my cards on the table.” He looked at Mydans and said, “This is off the record.” Visoth then turned to me, addressing me directly. “I think we are really in trouble here,” he began. Knowing that Visoth had spent the previous day with Sok An and David Scheffer, supposedly working out a solution to the problem facing the court, I was stunned. Visoth then ripped into Steve Heder, the Office of Co-Investigating Judges investigator, accusing him of having a conflict of interest because he had written a book analyzing possible candidates for prosecution at the tribunal.112 I attempted to de-escalate the obviously agitated situation. “I’ve spent fifteen years working on this, and I want it to succeed,” I ventured. “I want justice in Cambodia, so we have got to get through this week.”113 At this point, Mydans jumped into the exchange, asking, “What are the issues, which rules are the key stumbling points?” “It’s not about the fucking rules!” Visoth replied, not quite

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shouting, but slapping his hand on the table for emphasis. “This is political! I have it on very good authority that the international co-prosecutor has decided to vastly expand the number of people who are to be prosecuted,” he asserted. Unsure if he had heard what he thought he had just heard, Mydans blurted out, “What is that you say?” Making sure that he was understood, Visoth repeated the last line. “I have it on very good authority that the international co-prosecutor has decided to vastly expand the number of people who are to be prosecuted,” he said, staring directly at me. “The deal we negotiated was for five to ten defendants, and now the other side is breaking this deal.” “Perhaps you do not understand how the process of investigation works,” I began, realizing now that this was not an interview with Mydans. “We might look at many names,” I continued, “but then only refer some of them to the co-investigating judges. Whoever is your source on this cannot possibly know how many we intend to prosecute, because we have not yet finished our investigation, and we ourselves do not yet know what the number will be.” “Steve Heder had his seven candidates, and now he wants many more,” Visoth continued. “This is a violation of the agreement we made with the UN.” I immediately countered Visoth’s claim. “Steve is like me, he is a small person,” I said. “The decision about who to prosecute is not his to make. That decision belongs to Leang and Robert. We can advise, but we cannot decide.” Visoth shifted in his chair and seemed to visibly deflate. “Who can I trust?” he demanded. “You can trust me,” I replied evenly. The tone of the encounter then shifted dramatically. “We do not want to live forever on foreign aid,” Visoth explained, returning his gaze to Mydans. “Last year, one million tourists visited Cambodia. This is how we can end our dependence on foreign aid. But if we arrest the wrong person and a Khmer Rouge military commander goes back into the jungle with his troops, then that is all lost, and the value of this tribunal will become negative. It is not worth it.” Mydans was incredulous. “Is that your concern? Is that possible?” he asked Visoth. I then took Visoth’s side. “It would not take much,” I said. “A couple of guys could come down from Phnom Voar and throw a few grenades into a hotel at Kompong Som. Those explosions would be heard all over the world. The probability of that happening is low, but the consequences could be devastating to the economy.” And so the encounter wound down. The Cambodian side had decided to open a new front in the rules negotiations, one that directly addressed their real concerns.

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Spurred by news of my encounter with Visoth, on Tuesday the international co-prosecutor met with his counterpart, Chea Leang, in an effort to reassure her that he did not intend to crash through the diplomatically agreed-upon limitation on the number of persons to be prosecuted. Back in the Rules Review Committee meeting, there was again precious little to show for the day’s negotiations. The international members of the committee decided that if there was no progress by Wednesday, they would begin planning for what they termed the “doomsday” option, which they would aim to implement on Friday.114 The frustration was undoubtedly real, but some of the huffing and puffing by the internationals may have been a negotiating posture aimed at moving the talks. After all, as Judge Lemonde later wrote, Judge Cartwright had told him that she would regard the dissolution of the tribunal as a personal failure.115 Even so, at the time, Judge Lemonde had stressed in public comments that securing fair trial rights was a make-or-break issue for the international judges. “This is a non-negotiable issue and, if these conditions were not met, the judges would just have no choice but require the UN to withdraw. This is not a threat or, worse, bluff— it’s just the reality.”116 The Rules Review Committee would not get to “yes” during the January session. Wednesday was a more hopeful day, with movement on some minor issues, but on Thursday things went rapidly downhill. The atmosphere was so poisonous that the conferees very nearly came to physical blows. Judge Lemonde issued an ultimatum, telling the national members of the committee that they had until noon the next day to yield on key issues, or else the internationals would call a press conference and announce the collapse of the KRT.117 As it happened, on that next and final day of the Rules Review Committee meeting, there was no breakthrough on the two most crucial issues—the status of the Defense Support Section, and the question of how Closing Orders would be dealt with in the Pre-Trial Chamber—and yet the internationals did not follow through on Lemonde’s threat to pull the plug. At the conclusion of their two-week session, the committee issued a statement saying that they had made “solid progress” but “there remain several major issues to be fully resolved.”118 The judges also announced that the committee would convene again in March. With international judges repeatedly threatening to resign and a media chorus proclaiming the imminent collapse of the tribunal,119 on February 14, 2007, the Open Society Justice Initiative (OSJI) dropped a bombshell. Two

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weeks earlier, a local vernacular newspaper, the Voice of Khmer Youth, had published an article asserting that Cambodian KRT officials paid 30 percent of their salaries to government officials in order to secure their jobs.120 That piece sailed below the radar largely unnoticed, but when the prestigious OSJI, which not incidentally was supporting the main external tribunal monitoring operation, issued a statement making essentially the same allegation, the impact was immediate and global.121 The incident also opened a gaping fissure between the national and international sides of the court. Peter Foster, ECCC press officer and a UN staffer, sounded supportive of OSJI’s revelations. “The official line is that we are supporting OSJI’s determination to ensure the ECCC is a transparent and independent court,” he said.122 In contrast, Helen Jarvis, the court’s chief of public affairs, told reporters that Director of Administration Sean Visoth had determined that he “does not wish to cooperate with them [OSJI] anymore due to the bad faith and bias on their part.”123 Deputy Prime Minister Sok An appeared exasperated with the allegations: “I don’t know what [OSJI] is talking about,” he told reporters. “They just say this and that.”124 The problem appears to have arisen from a combination of the unique political economy of Cambodia and an unfortunate personnel choice on the part of the director of administration. The Cambodian People’s Party (CPP) is in fact a membership organization, and to join, you must pay dues. The amount is based on the Marxist slogan “from each according to his ability,” so each member pays a portion of their monthly income to the organization. The dues are collected at the enterprise level, so the director of administration assigned his chief of protocol to carry out this administrative function. Unfortunately, that chief of protocol was more greedy than clever, and decided it would be a good idea to demand payments from all Cambodian staff at the ECCC, including the few who were not CPP members. It was from among that small group of non-CPP KRT staff that the complaints about corruption made their way to the court’s monitors, and thence to the wider world. The director of administration identified the original source of the problem in short order and terminated the offending employee, but in the public eye, the die had been cast, and henceforth nearly every public commentary on the KRT would include a discussion of the “corruption” at the court. The announcement by the Rules Review Committee that it would convene again from March 7 to 16 came as a welcome relief amid the barrage

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of negative publicity regarding the kickback scandal.125 Befitting the chasm dividing the national and international sides of the court, the press release announced that prior to the committee meeting, “all international judges” would gather in Bangkok for preliminary discussions and “all national judges” would gather in Phnom Penh. It also noted that since the January meetings, committee members had continued to work on outstanding issues and had “resolved many remaining areas of disagreement.”126 Finally, the notice suggested that should the March committee meeting be successful, the committee would call for a plenary of all judges in April to consider and adopt the Internal Rules of the court. The international judges of the Rules Review Committee met in Bangkok on March 2 to consider their strategy, then joined their national colleagues in Phnom Penh on March 7.127 “We have considerable hope that this work will be finalised during this meeting,” Director of Administration Sean Visoth and Deputy Director Michelle Lee wrote to the judges before the second meeting, adding that “The eyes of the world are on us once again during these 10 days.”128 The proceedings appeared to progress far more smoothly than the previous session in January, with outstanding issues being resolved one after another. But on March 12, Ky Tech once again addressed the Rules Review Committee.129 He offered what he characterized as a “resolution” that would permit the adoption of the Internal Rules to move forward.130 Tech suggested that foreign lawyers pay $500 each in order to apply for membership in the bar association, and then if they were selected to represent a client, they would pay an additional fee of $2,000, as well as membership dues of $200 per month, totaling to a first-year fee of $4,900. The fee would fall to $2,400 per year in subsequent years.131 It may have been unclear to international members of the Rules Review Committee how this offer was a substantial improvement over the $5,400 first-year fee that Ky Tech had proposed in January. As the meeting was approaching its climax, Foreign Minister Hor Nam Hong signaled from Nuremberg, Germany, that the government was prepared to allow the process to move forward when he categorically stated, “In April there will be a plenary session of all the judges and prosecutors in order to finalize the internal rules.”132 It was telling that Cambodia’s foreign minister appeared to know more about the ultimate fate of the rules debate than the judges who were members of the committee actually debating the rules. It also was indicative of the Byzantine nature of the process

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that on the final day of the March Rules Review Committee meeting, Reuters and The Associated Press put out diametrically opposed headlines describing the outcome. For Reuters, the lead was “Khmer Rouge trial rules agreed at last,”133 while AP reported that “Judges fail to agree on rules for Cambodian genocide trials.”134 At the conclusion of the meeting on March 16, the committee issued a joint statement explaining the results of the sessions. The committee had “resolved all remaining disagreements” concerning the rules, “although some fine tuning remains to be done.”135 However, the statement also noted that the international judges on the committee believed that the fee for foreign lawyers proposed by the bar association was “unacceptable.” The international judges believe that the failure to fix an appropriate fee places an obstacle to adopting the Rules while the national judges consider that the registration fee, being an issue outside the scope of the draft Internal Rules, should not be an obstacle to their adoption. The judges are ready to hold a plenary at the end of April. For international judges, this will be possible only if a satisfactory resolution of this issue is reached.136

The statement concluded by saying that the bar association “is invited to reconsider its position” on the fee issue “as soon as possible.”137 Helen Jarvis, chief of the court’s Office of Public Affairs, declared victory. “Friday was a very important day in the history of the Extraordinary Chambers because both international and national judges in the review committee came together and agreed finally on the content of the internal rules,” she said. “There is still a sticking point on the fees, but that is a question that is outside the internal rules,” Jarvis continued, echoing the position of the national judges. “So now the job of the internal rules is complete and we are calling a plenary session in all likelihood on the 30th of April.”138 Not so fast, responded the international side. The fee dispute with the bar association was still a deal killer for the internationals. “If this can’t be resolved the tribunal does not go forward,” said Rupert Skilbeck. “But I’m fairly confident we can find a way to sort this out.”139 Judge Marcel Lemonde reiterated that the high bar fees could limit the number of foreign counsel who would step forward to defend accused persons, which might lead defendants to argue that they were not able to retain the counsel of their choice. “The rules cannot be adopted until we are satisfied that they provide

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for fair, transparent and open trials, which imply a strong defense for any accused,” Lemonde said. “This has been an issue for nine months and all the judges of the ECCC want it resolved immediately so that the courts can begin their much-delayed judicial work.”140 Human rights groups pointed to ulterior motives behind the delay. “It is very unlikely that it dreamed up these fees on its own. More likely is that it is taking instructions from the government as part of the government’s continuing strategy of bargaining and obstruction,” argued Brad Adams of Human Rights Watch. “What there is no doubt about, given the meddling of Hun Sen in the affairs of the bar association in the past and the personalities leading the Bar Association, is that if the government wanted the Bar Association to drop its demands, it could make this happen with a phone call.”141 Mark Ellis, Executive Director of the International Bar Association, said that the contours of the dispute raised questions about direct links between the Cambodian Bar Association and the government. “We are not naïve, we are aware of these concerns. We will continue to look very carefully at any evidence that CBA is not independent but is an arm of the Cambodian government.”142 The Asian Human Rights Commission angrily called the bar association’s stance “immoral and reprehensible,” and an “inhuman act.”143 Local human rights activists were also suspicious that the bar association was acting under instructions from the government. “This feeds into the perception that the CBA is a tool of politics,” said Theary Seng of the Center for Social Development. “This perception is understandable in light of its close affiliation with the ruling party.”144 “This is a politicized process, and the Cambodian Bar Association is being used as an actor, as a pawn, to achieve larger political goals,” she argued. “I think that there are influences and powers who want to make sure that if it is to go forward, that they are in control.”145 Two weeks after the internationals on the Rules Review Committee appealed for the bar association to reconsider its demands for fees, they raised the stakes, both for the bar association and for their national colleagues. The international judges sent a letter to Supreme Court Chamber President Kong Srim declaring that it would not be possible for them to participate in the envisaged April 30 plenary to adopt the rules, in view of the intransigence of the bar association on the fees issue.146 They also informed Srim that “the window of opportunity is closing quickly and they simply cannot allow for endless delays,” so the judges would reassess the situation

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at the end of April, and if there was no progress by then, they would “propose organizing the whole process of participation of foreign lawyers from registration to discipline without the assistance of the Cambodian Bar Association, in line with established practice in other international and hybrid tribunals.”147 Ky Tech was not amused. “I am still keeping my stance of independence and cannot be instructed by the international judges,” he said in response. As for excluding the bar association from a role in the KRT, “It will be cut out only if the tribunal is carried off to be held in their own countries,” he insisted.148 In a letter the next day, all fifteen national judges of the KRT accused their international colleagues of delaying the progress of the tribunal. “Such a move is not consistent with the substance and spirit of the Agreement between the Royal Government of Cambodia and the United Nations,” they insisted.149 The national judges concluded by appealing to their colleagues to reverse their stance and participate in the April 30 plenary and followed their letter with a unified hard-line stance in comments to the media. “If [the international judges] make the rules excluding the bar association, all Cambodian judges will not participate with them,” Supreme Court Chamber President Kong Srim said, arguing that Cambodian law requires a role for the bar association.150 “Kong Srim is my boss,” added Trial Chamber President Nil Nonn. “If the boss goes anywhere, I go there too.”151 Ky Tech and his associates at the bar association had offered an evolving series of rationalizations for the hefty fees they were demanding. On March 18, Ky Tech asserted that foreign lawyers would be paid at the rate of $1,000 per day, so the bar association fee was “reasonable.”152 Somewhat later, he argued that foreign attorneys earned more than Cambodian attorneys and therefore the higher fee “was a necessary restriction in the interests of his members.”153 In early April, CBA Council Member Uk Phourik suggested that the fee was based in law. “The fees are a legal requirement,” Phourik said, without citing the particular law to which he was referring.154 Around the same time, Canadian Ambassador Donica Pottie told reporters that Ky Tech had provided her with several explanations for the required fee, including that it would support a library for the use of the foreign attorneys and that it was due to the differential between Cambodian and foreign salaries.155 National Judge Thou Mony of the KRT Trial Chamber supported this reasoning, suggesting that “The fees, if compared to their salaries, are not expensive. Their salaries are $30,000, $40,000 and $50,000

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per month.”156 Rupert Skilbeck of the KRT’s Defense Support Section, who would be responsible for paying the foreign attorneys, reported that in fact foreign attorneys at the KRT would be compensated at the “P-5” UN level, which would be between $73,975 and $79,628 per year.157 Bar association officials later argued that the fees would be used to “lower the income gap” between Cambodian and foreign lawyers, presumably by lowering the income of foreign lawyers.158 By mid-April, Ky Tech was asserting simply that the fees would be used “support the legal profession.”159 Japan had been a key player in the establishment of the KRT, and the dispute with the bar association prompted it to step forward once again. Japanese diplomats initiated quiet negotiations with the bar association on ways to break the deadlock with the Rules Review Committee. Ky Tech met with Japanese Ambassador Fumiaki Takahashi and planned an additional meeting with Japanese diplomats for April 25. “If the meeting has good results which can be submitted to the board of [the CBA] to decide, the board of the CBA will call for a meeting on the 27th of April,” Tech told reporters.160 “Japan came in and said, we understand the financial straits and needs of the bar association,” explained Helen Jarvis, “and we will give them a new headquarters if they will drop the fee to what people think is a reasonable compromise.”161 Following the Japanese offer on the 25th, the Bar Association Council met on the 27th and agreed to dramatically lower the fee it would demand from foreign counsel practicing at the KRT, from $4,900 to just $500.162 According to Nou Tharith, the bar association’s spokesman, “The most important reason for the change in formula is based on mutual respect with Japan, which has been a long-term partner.”163 The Japanese embassy declined to comment on the talks, other than to welcome the bar association’s decision, saying, “Japan expects that, following the decision, internal procedural rules will be adopted at an early timing, then the proceedings will be properly and promptly commenced.”164 The bar association’s move was welcomed by all involved. “We were very concerned by the deadlock at the ECCC and felt we had to do something to break it,” said the bar association’s Nou Tharith. “Also, we are all very aware that the Cambodian people have been waiting a long time for justice. We don’t want to make them wait any longer,” he added.165 “I think that we should accept what they’ve said,” argued tribunal spokesperson Helen Jarvis, “that they believe that it’s the best way forward and they don’t want to stand in the way.”166 “With this decision, the international judges

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believe that a successful plenary can now be called to adopt the internal rules of the Extraordinary Chambers,” the international judges wrote in a joint letter.167 National Co-Investigating Judge You Bunleng said that the national and international judges were already working together to resolve a few remaining details, including how to handle a Victims Unit for the court. “We don’t want to have the disputes again,” Bunleng said.168 His counterpart, Judge Lemonde, agreed: “The resident members of the review committee are currently working on the very last fine tuning of the rules and discussing the organization of the plenary.”169 The way was now clear to schedule a plenary session for the KRT’s judges to consider adopting the Internal Rules. The date was set for May 31 to June 13.170 GETTING TO YES

In the lead-up to the June plenary, the KRT’s judges were in a generally positive frame of mind, but some of the internationals were still keeping up the pressure. Judge Lemonde told journalists that the upcoming plenary was essentially the last chance for the rules to be adopted. “And if the rules were not adopted at this time, then it would be dramatic for the future, the very existence of this court,” he declared.171 Supreme Court Chamber President Kong Srim was more upbeat. “In principle, we have agreed on the big issues already. There are still some small points that we can discuss,” he said, but “it seems there will be no more obstacles.”172 As the date to convene the plenary arrived, even Judge Lemonde began to sound relaxed and confident. “People feel rather optimistic, all disagreements having been resolved,” Lemonde told journalists. “So, the general mood is that the judicial process is going to begin, at last.”173 After two days of separate discussions among the national and international judges the previous week, on Monday, June 4, the full plenary began at the Hotel Le Royale. “The task we have before us is a valuable and crucial one,” said Kong Srim, speaking for the national judges.174 “It is too early to discuss the outcome, but we are all optimistic,” added his fellow co-chair, Judge Silvia Cartwright.175 Optimism turned out to be the appropriate feeling, as the plenary sailed through the work over the next five days. At the end of the week, an indication arrived that the national side was certain the Internal Rules would be adopted; Deputy Prime Minister Sok An had invitations delivered to each of the judges for a gala dinner to celebrate the

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formal adoption of the rules, despite the fact that the deliberations of the plenary were not yet complete.176 At the weekend, Pre-Trial Chamber President Prak Kimsan commented to the media that the plenary had completed work on all but one final rule. “A final discussion on the remaining single article is planned for 11 June,” he told journalists.177 The day after that, he predicted, the Internal Rules would be adopted in full. Contrary to Prak Kimsan’s announcement, there were actually two pieces of business remaining to be discussed before a vote could be taken on the rules. In addition to Rule 63.6, concerning the limits of pretrial detention, which had been deferred for later discussion, the plenary also needed to review and approve the glossary of terms that would come at the end of the rules.178 The glossary was just four pages long and defined thirtyfour legal terms. The judges began going through the definitions one by one. The first term, “Accused,” was uncontroversial, with no comments or amendments offered. The second item, “Agreement,” which referred to the UN-Cambodia agreement signed in 2003, similarly passed without comment. Then came “Arrest and Detention Order.” The draft definition was worded as follows: “ ‘Arrest and Detention Order’ (mandat d’arrêt) refers to an order to the Judicial Police to search for, arrest and bring a Charged Person or Accused to the ECCC detention facility; and to the head of the ECCC detention facility to receive and detain that person.”179 One of the conferees suggested an entirely innocent amendment, proposing to introduce the clause “pending notification of charges” directly before the semicolon. There ensued a debate on the meaning of, and the proper way to translate into Khmer and French, the word “pending.” After two hours of intense discussion, a consensus finally emerged: it doesn’t matter, forget about it, it’s time for the coffee break, let’s break for half an hour and then resume. In the first two hours on the next-to-last day of the makeor-break plenary, then, the judges had made it through three of the thirtyfour definitions. Forty-five minutes later, the judges reconvened, and suddenly it became apparent that a new attitude had emerged. In scarcely twenty-five minutes, the judges sailed through the remaining thirty-one definitions with very little comment and very few suggested amendments. It was as if someone had instructed the national judges to stand down and simply vote yes on everything the internationals proposed. Be that as it may, that is exactly what they did, and the plenary made short work of the glossary.

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Then came the last remaining little bit of business. The entirety of the draft rules had been approved by the national and international judges, save for a seemingly minor subrule, Rule 63.6. Rule 63 dealt with the issue of pretrial detention. For reasons that were not clear, the plenary had been unable to achieve consensus when they got to this subrule during the first pass, so they decided to defer it until the end. Subrule 6 of Rule 63 concerned the limits of pretrial detention, and this draft rule closely followed the (thenpending) new draft code of criminal procedure. Co-Prosecutor Chea Leang was the ball carrier for the national team. Draft Subrule 6 specified that for national crimes—murder, religious persecution, and the like—the maximum pretrial detention period was six months. However, for a special set of international crimes—war crimes, genocide, and crimes against humanity—the maximum pretrial detention period would be three years. Chea Leang proposed to insert the word “each” just prior to this list of international crimes. This would have the effect of extending the potential pretrial detention period for someone accused of all three of those crimes to nine years. And that—not incidentally—is exactly what the Cambodian government had done to Kaing Geuk Eav alias Duch, the commandant of the S-21 security office, for the last eight and a half years. It took some considerable explanation and translating for the dimensions of the issue to emerge from the verbal fog. It gradually developed that the international judges thought the inserted word should be “any,” or “all,” but not “each.” The nationals, on the other hand, were absolutely adamant that it should be “each.” Once that line had been clearly drawn in the sand, all hell broke loose in the plenary. Apparently, only a few participants recalled that this very matter was the first issue to provoke a shouting match between nationals and internationals on the third day of the first plenary in July of the previous year: the extended pretrial detention of Duch and Mok. Mok had died the previous July, so his case was moot, but there was still the matter of Duch’s very long pretrial detention by the government. That was not necessarily an issue for the ECCC, per se, because the KRT was not detaining Duch—not yet, at least. The KRT’s pretrial detention clock would not start ticking until the court took someone into custody. Duch, however, was being detained by the Phnom Penh Military Court, the president of which also happened to be a judge of the ECCC Pre-Trial Chamber. So this issue was of crucial symbolic and practical import for the national side, presumably because they

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wished to retroactively legitimate the nearly decade-long detention of Duch by the government. But the international judges were having none of it. “Ah!,” the national judges insisted, the UN-Cambodia agreement specifies that the court will operate according to existing Cambodian “procedures in force,” and the existing pretrial detention procedures for war crimes, genocide, and crimes against humanity clearly provide for “each” charge to draw a three-year detention period. “Oh, no!,” the international judges insisted, the UN-Cambodia agreement specifies that the court will operate consistent with “international standards,” and there are numerous precedents that clearly demonstrate that nine years’ pretrial detention is unacceptably excessive and a denial of the right to a fair and speedy trial. Thus the line was drawn between “procedures in force” and “international standards,” an artifact of the ideological divide that had haunted the court since before its inception and would haunt it for years to come. It would have been ethically improper to bring the actual name of any potential suspect—such as Duch—into the plenary discussion, so the debate wove back and forth in incredible circumlocutions, arcing all around the obvious while never touching directly upon it. After two hours of inconclusive dithering, and well past the time for the lunch break, the Cambodian side called for a caucus. The national judges retired to one break-out room and the international judges to another, to “reconsider” their positions. Sean Visoth, the director of administration for the court, quietly stepped out of the plenary room onto the hotel colonnade, discreetly trailed by an eagle-eared international investigator. Visoth hit a speed-dial button on his cell phone, and began by saying, “Your Excellency, we have a problem.” He quickly explained the issue to Deputy Prime Minister Sok An, telling him that he feared this was a non-negotiable matter for the internationals, and that this one word, “each,” threatened to derail the entire plenary, with potentially terminal consequences for the process. Reflecting the gravity of the problem, Sok An informed Visoth that this question would have to go to the top, but unfortunately the Big Boss was unavailable at the moment. His instructions, therefore, were to stall for time. Meanwhile, the two caucuses were blathering away in their separate rooms, belaboring the obvious. Visoth returned to the plenary chamber and then went into the national caucus, where he could be seen through the glass door gesticulating in an animated fashion, while the national judges looked glum. The new plan having been decreed, the nationals returned to the

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plenary room. When the full plenary reassembled, the national side suddenly announced that a Very Important Person had recently passed away, and therefore as a matter of respect for their long-standing friend and colleague, the entire national contingent of judges was humbly requesting an adjournment of the plenary until 8:30 a.m. the next day so that they could attend the funeral, which was due to start in just about an hour. Slightly bewildered, the internationals reluctantly agreed, upon which everyone— including all the national judges—went off to the hotel’s Monivong Café for a leisurely two-hour buffet lunch. At some point in the subsequent sixteen hours, the necessary consultations were carried out and new instructions were issued. It was decided to yield the point in order to get to “yes.” When the plenary reconvened on Tuesday morning, an atmosphere of bonhomie and concord prevailed among the nationals at the table, which slowly spread to the internationals as it dawned on them that the problem with “each” had evaporated during the night. The 63.6 question was quickly settled in favor of the international position, whereupon a vote on the Internal Rules as a whole was called, and they were unanimously adopted by the plenary. On Wednesday, June  13, 2007, the ECCC held a press conference to announce the successful adoption of the court’s Internal Rules. International Co-Prosecutor Robert Petit told the assembled media, “These rules enable us to hold fair, transparent trials before an independent and impartial court.”180 In a joint statement, the officers of the court continued, “After intensive work and consultation we are pleased to have finalised the Rules in a reasonable time. . . . In less than a year the ECCC has not only adopted its Internal Rules but also has begun the preparations necessary for the court to become fully operational.”181 The statement went on to say that the judges expected that the co-prosecutors would soon file their first Introductory Submission, and that the co-investigating judges would then begin the judicial process. Visiting Tokyo, Cambodian Prime Minister Hun Sen hailed the development at the KRT. “This is undoubtedly what all of the people of Cambodia have been hoping for,” he said. “I really hope the trial will begin as soon as possible.”182 Deputy Prime Minister Sok An was similarly effusive in his praise, saying, “Our foremost objective is to provide justice for the victims, the entire Cambodian people, and for humanity as a whole.” The deputy prime minister then added an intriguing codicil. “In striving to achieve this

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long-awaited justice,” he noted, “we must not jeopardize our country’s newly-won national peace, unity, and stability.”183 Those final words would turn out to be freighted with meaning for the future course of the tribunal. On June 20, the KRT published the Internal Rules in English, French, and Khmer on its website,184 whereupon the rules came into force.185 Now the game was well and truly begun. FIRST INTRODUCTORY SUBMISSION

The preliminary investigation in the Office of Co-Prosecutors had continued steadily during the long struggle over the Internal Rules. By early March 2007, OCP investigators and prosecutors had made good progress in identifying which sites should be part of the crime base to be submitted to the co-investigating judges. At the same time, it had become apparent that collecting an adequate set of probative evidence on some of the candidates for the “most responsible” prong of OCP’s personal jurisdiction would require significant additional fieldwork. With these two considerations in mind, the co-prosecutors made an important strategic decision: the first Introductory Submission would focus primarily on the “senior leaders” prong of their jurisdiction. While the co-investigating judges conducted their judicial investigation of those suspects, OCP would continue working to prepare additional Introductory Submissions on the second prong. The preliminary investigation was supposed to be confidential, but it was of high interest to many people, including the Cambodian people in general and the Cambodian government in particular. Though the details of OCP’s work would remain mysterious to the public for some time, the Cambodian government had various means of keeping abreast of what was being done. On more than one occasion, OCP staff happened to accidentally discover confidential internal OCP documents circulating within Judge You Bunleng’s side of the Office of Co-Investigating Judges, so obviously there were leaks occurring somewhere. OCP investigators also noticed that early on, building maintenance staff showed an extraordinary level of care in attending to what appeared to be a smoke detector positioned on the ceiling above their desks, checking it on a weekly basis—something that did not seem to happen, or indeed even to exist, in any other office in the building. When OCP staff suggested to the Office of Administration that it might be an interesting exercise to have the building swept for surveillance

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devices, this idea was rejected by Sean Visoth on the grounds that such a move would indicate a “lack of trust.” In the first year of their work, OCP investigators also noted that their offices were subject to regular nocturnal visits, during which file cabinets and desk drawers would be rifled, often in a rather messy fashion, suggesting that the night visitors wanted the investigators to know they themselves were being investigated. Another telling episode was when UN information system personnel noticed that the international co-prosecutor’s desktop computer had been equipped with a device that copied its hard disk to a modem, which in turn was connected to a telephone number in the same exchange as the Ministry of Interior. All of these indications that their work was being closely followed by the Cambodian government led OCP investigators to adopt what they referred to as an “open desk” approach to information security. If the government could see that the investigators were making no effort to conceal what they were doing, so the reasoning went, perhaps the powers that be would be reassured that the work of the internationals in OCP was not some sort of trick designed to attack the government’s power, legitimacy, or stability. Thus it was fascinating to note that once work on the first Introductory Submission coalesced around six particular suspects in February  2007, this neatly coincided with an apparent decision by the government to allow the work of the Rules Review Committee to move ahead in March.186 OCP prosecutors had begun drafting indictments in September 2006, while investigators focused on assembling and analyzing evidence.187 The original expectation was that the Internal Rules would be adopted at the November 2006 judicial plenary meeting, and the co-prosecutors wanted to be ready to forward an Introductory Submission to the co-investigating judges shortly after the rules came into force. Consequently, the work of the OCP in that period was characterized by frantic preparations to meet a looming deadline. November came and went without final agreement on the rules, as did January, and then March. Meanwhile, the pace of preparations in OCP never really slowed down, and as a result, the volume of evidence that OCP investigators had assembled continued to grow and the character of the draft indictment became ever more elaborate. It was a classic expression of “Parkinson’s Law”: the work expanded to fill the time available for its completion. When the Internal Rules were adopted on June 12, 2007, and then came into force upon publication eight days later, that was the signal for OCP to

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wrap the preliminary investigation and deliver an Introductory Submission. By that time, a full eleven months after OCP had launched the investigation, the case file had grown to enormous proportions.188 More than 45,000 pages long, the hard-copy version of the submission filled 130 looseleaf binders.189 OCP had prepared the submission in two versions, English and Khmer, and it was accompanied by identical English and Khmer electronic versions. On July  9, having determined that preparations were sufficiently advanced, International Co-Prosecutor Robert Petit proposed to National Co-Prosecutor Chea Leang that they should file the Introductory Submission with the co-investigating judges three days hence, on July 12.190 Leang briefly considered her counterpart’s proposal, then informed him that she could not agree to it. The 12th was an “arbitrary” date, Leang explained to Petit. Moreover, 12 consisted of 1 + 2, which equals 3, and that is an unlucky number. Much better, Leang suggested, would be the 18th, because 18 consists of 1 + 8, which equals 9, and 9 is a lucky number. Robert Petit pondered this logic for a few moments, and deciding that discretion is often the better part of valor, agreed to his colleague’s counterproposal. Upon learning of this exchange, OCP’s analysts suggested to Petit that the political echelon most likely had not yet completed their vetting of the submission, so Leang was still awaiting instructions, and that therefore he had made the correct choice. As it happened, wrestling to the ground the myriad final details in such a massive submission turned out to take more than three days, so the extra week or so was ultimately necessary in any case. It seems that OCP was not the only organization engaged in urgent preparations for a historic sequence of events. OCP investigators had established an intelligence network to monitor the whereabouts and activities of their suspects. This is how the investigators learned that the day after Petit agreed to Leang’s proposal to file the Introductory Submission on July 18, the chief of police in Pailin, the region of northwest Cambodia populated by many former Khmer Rouge, informed local residents Nuon Chea and Khieu Samphan that they would be arrested by the KRT on July 19.191 It actually would take the co-investigating judges some time to digest the massive submission and decide to issue arrest warrants, and consequently the police chief’s prediction turned out to be off by a couple of months. Nonetheless, the episode was another reminder that the work of the Office of CoProsecutors was of enduring interest to the Cambodian government, and

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that the government would continue to track everything the internationals did with great care. The first Introductory Submission had been carefully prepared over the course of one year of intensive work by the national and international staff of OCP, and it targeted six individuals. Nuon Chea had been the second in command of the Communist Party of Kampuchea (CPK), and hence was known as Brother Number Two. According to prosecutors, he was responsible for internal security. Ieng Sary was deputy prime minister, minister of foreign affairs, and Number Three on the CPK Standing Committee. According to prosecutors, Sary was deeply involved in luring overseas Cambodians back to the country, where most of them were summarily executed. Sary’s wife, Ieng Thirith, was minister of social affairs, responsible for the nation’s health care system. According to prosecutors, she also played a much wider role in the regime, including establishing the prerequisites for a massive purge of the Northwest Zone. Khieu Samphan was president of the Presidium of the Khmer Rouge state and a close confidante of Pol Pot and Nuon Chea. According to prosecutors, not only was he a central actor in guiding the Cambodian economy, but he also played a key role in identifying “internal enemies” within the CPK. Van Rith was the minister of commerce, and hence also was a central player in the economic catastrophe that was Cambodia under the Khmer Rouge. According to the prosecutors, he would, in effect, be the Albert Speer of the KRT.192 The prosecutors considered these five individuals to fall within the “senior leader” area of their personal jurisdiction. Finally, the sixth individual named in the first Introductory Submission was Kaing Guek Eav alias Duch, who as secretary of the S-21 Security Office effectively functioned as the chief of secret police for the Khmer Rouge regime. Duch fell into the “most responsible” prong of OCP’s personal jurisdiction, but given his complex linkages to the other five “senior leaders,” prosecutors believed that it was necessary to prosecute him along with the others in the first batch of accused to be brought to trial. All was in readiness, and the moment of truth had arrived. On the morning of July 17, 2007, Robert Petit walked into Chea Leang’s office and said, “Partner, it is time to sign this thing.”193 Leang looked up at Petit, batted her eyes a few times, and responded, “Uh, no. I will not sign it.” Reflecting his steely disposition, Petit responded, “And why is that? Last week you said

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yes, no problem, let’s do it, let’s go for it, let’s get these bad guys. And now, at the very last second, you say ‘no.’ Why do you say that? Why are you doing this?” “Well,” Leang replied, “Last night I read it. And I just don’t think there is enough evidence in there to bring charges.” “We have to discuss this,” Petit said evenly. And discuss it they did. It soon transpired that Leang did not object to the submission in general; rather, she objected to one particular suspect: Van Rith. Leang argued to her partner that she needed more time to study this particular suspect. After an hour and a half of fruitless debate, Petit put a proposal to her. “What if we take Van Rith out? Will you sign on the rest of them?” “Yes,” replied the national co-prosecutor, “I will do that, and we can study this other suspect more thoroughly and decide about that case later.” Petit immediately sent word out to his team to remove Van Rith from the Introductory Submission, an exercise that came to be known as the “emergency suspectectomy.” Petit wanted it done immediately, before the close of business that very day. This was an extraordinary demand. The entire case was based upon a theory of criminal liability known as Joint Criminal Enterprise, in which all of the suspects were tightly linked together in a web of criminal activities. Thus the 45,000-page presentation explained in detail how these six people worked together to carry out their common plan. Moreover, the whole 130 volumes was indexed and cross-referenced. If the team was to delete one-sixth of the material, the indexes would all have to be redone, and that would take weeks of additional work, at least. Already some at the court—not to mention the public in general194—were beginning to wonder why OCP had not yet delivered the submission, now nearly a month after the rules had come into force. Senior members of the OCP team huddled and quickly put together an action plan. One group would delete all mentions of Rith as a suspect from the case management database, another would scrub his name from the main text of the submission, and a third team would remove everything relating to Rith from the witness lists. They would leave all the documentary evidence pertaining to Rith in the 123 binders of evidence, but eliminate anything that linked each piece of evidence directly to him. Maybe the co-investigating judges would just assume that this evidence concerned one of the other named suspects. In theory, all of this could be done without causing the elaborate indexing system to collapse, and without having to re-create the huge collection of evidence

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binders. With an all-night effort by these teams, along with the translation teams, it might be possible to remain on track to deliver the submission on the 18th. It turned into a long night, and a long day the next day, but the OCP team delivered. At 7 p.m. on the evening of July 18, OCP staff and interns carted the massive collection of binders down the long hallway from the OCP suite on the north end of the third floor of the KRT administration building to the OCIJ suite at the south end. There, equal parts bemused and mystified, awaited International Co-Investigating Judge Marcel Lemonde to receive the first Introductory Submission.195 Formal accusations had been made, and now, for the first time since they plunged a nation into hell, Khmer Rouge leaders would be called to account for their crimes. Having survived a tumultuous first year, with the Internal Rules in place and a docket of accused persons for the judicial chambers to begin processing, the tribunal creaked into high gear. The graft allegations and the Cambodian government’s intense interest in precisely who the prosecution would pursue signaled that the trajectory of the Khmer Rouge Tribunal could turn out to be a bumpy ride. As the number of players rapidly

FIGURE 7.2. Judge Lemonde receives first Introductory Submission, July 18, 2007.

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expanded—soon to include not only the co-investigating judges but also defense attorneys, the Pre-Trial Chamber, and soon enough, the Trial Chamber as well—the number of opportunities for turbulence would also expand. Although the Khmer Rouge regime had been gone for more than a quarter century, the foreigners working at the tribunal would quickly discover that the Khmer Rouge remained an exquisitely sensitive subject in Cambodia. And although the internationals had already agreed to a form of selective justice by limiting the prospective number of accused to “five to ten,” they would also soon see that this question was far from settled.

Chapter Eight

GENOCIDE JUSTICE

Since the 1979 People’s Revolutionary Tribunal, the idea that there would ever be another genocide trial in Cambodia seemed like a far-fetched fantasy to just about everyone. But now in 2007, twenty-seven years later, prosecutors in Cambodia had formally alleged genocide in charges filed against Khmer Rouge leaders. With the Khmer Rouge Tribunal’s complex structure and burdensome procedures, however, it would take another decade to reach even a first-instance verdict on those charges. The story of how that decade unfolded, and why it took so long, is the subject of this chapter. OCIJ TAKES CENTER STAGE

When the Office of Co-Prosecutors (OCP) filed the first Introductory Submission with the Office of Co-Investigating Judges (OCIJ) on July 18, 2007, the center of gravity at the Khmer Rouge Tribunal shifted from the prosecutors to the judges. Paradoxically, however, this action also multiplied the tasks facing the OCP. Now the prosecution had to both monitor the judicial investigation being undertaken by the OCIJ and continue their preliminary investigations in the second prong of their personal jurisdiction, the “most responsible,”1 deal with motions by the defense, and, soon enough, also begin preparations for the trial phases of the proceedings. But for most

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of the court and the wider world at large, the spotlight shifted to the investigating judges. The institution of the investigating judge is unfamiliar to many reared on the common law system as practiced in countries such as the United States and the United Kingdom. In the continental civil law system, the role of the prosecutor is confined to making accusations, and then if the charges are confirmed by the investigating judge, to carrying the case into court to be heard first before trial and then before appellate judges. The investigating judge is responsible for conducting a detailed and impartial investigation into the accusations brought by the prosecutor and determining if there is adequate evidence that the accused is indeed responsible for the crimes alleged. The evidence is compiled in a “case file,” and should the investigating judge decide that a trial is warranted, the case file is then forwarded to the trial judges, who in the ordinary operations of the civil law system, will study the case file and draw their conclusions based upon the contents. Thus criminal trials under the civil law system are a very different procedure than the adversarial contest between the prosecution and defense that occurs in common law trials. But the Extraordinary Chambers was no ordinary civil law court. The KRT evolved as a hybrid form, adopting elements of the common law approach to trial that entailed a significant degree of adversarial interaction between the prosecution and the defense. The first major judicial act by the co-investigating judges, just twelve days after receiving the case file from the co-prosecutors, was to take Kaing Guek Eav alias Duch into custody. The event had the unintended effect of highlighting what would be an ongoing operational challenge in coordinating

FIGURE 8.1. How cases move

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action between officers of the court and officials in other organs of the Cambodian government—in particular the security organs. Judges Marcel Lemonde and You Bunleng had labored hard to negotiate between themselves the terms for taking Duch into custody, and they finally came to agreement late in the evening of July 30, signing the arrest order.2 But the order would not be valid until it was signed and sealed by the judges’ greffier, or clerk. The clerk, however, had already clocked out of the office for the day at 4:30 p.m., as was his custom. Nonetheless, some fifty-five weeks after the Phnom Penh Military Court had first attempted to transfer this prisoner to the ECCC, the military brass were not to be denied by a mere technicality. The next morning, at the crack of dawn, a convoy from the military court swept into the compound, delivering Duch to an airconditioned room to await formal action on his case by the co-investigating judges. Some two hours later, the OCIJ greffier arrived at the office, whereupon he signed and sealed the arrest order. One might say that the order had been “pre-executed.” Following an adversarial hearing on the question of Duch’s provisional detention, the co-investigating judges issued an order that he be detained for one year. The order discussed the principle of Male captus, bene detentus, which holds that how a person came to be in a jurisdiction is irrelevant to the action of that jurisdiction against him. A pertinent example cited was the case of Adolf Eichmann, who was kidnapped in Argentina by Israeli intelligence agents, then brought to Israel where he was tried, convicted, and executed for his crimes connected to the Holocaust.3 The order also discussed the countervailing doctrine of “abuse of process,” which holds that egregious violations of a defendant’s rights can be so detrimental to a court’s integrity that the only appropriate remedy is the release of the defendant. The Lubanga case from the International Criminal Court (ICC) was cited, concerning war crimes in the Democratic Republic of the Congo. In Lubanga, an ICC decision held that a violation of the defendant’s rights prior to his detention could only be considered if the court acted in concert with those committing the violations, or if the violation involved serious mistreatment such as torture.4 Having established the principle that kidnapping was okay, as long as there was no torture, the co-investigating judges found that “Where it has not been established or even alleged that DUCH suffered incidents of torture or serious mistreatment prior to his transfer before the Extraordinary Chambers, the prolonged detention under the

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jurisdiction of the Military Court, in comparison with the crimes against humanity alleged against the Accused, cannot be considered a sufficiently grave violation of the rights of the Accused.”5 The order concluded by finding that insofar as Cambodian society was “fragile,” Duch’s release would risk provoking violence, and therefore he must be detained.6 Nine days after Judge You Bunleng took the KRT’s first suspect into custody, at the Royal Palace King Norodom Sihamoni signed a Royal Decree from the Supreme Council for State Reform appointing Bunleng the new president of the Court of Appeals.7 The previous incumbent in that role, Ly Vuoch Leng, had been removed suddenly on accusations that she had taken bribes to free sex trafficking offenders who had been convicted by a lower court.8 Leng had also been a candidate to be a judge at the KRT but ultimately did not make the cut.9 Bunleng was informed about his new assignment in a phone call to his office on the afternoon of August 10, and the news spread like wildfire through the court. The reserve national coinvestigating judge slated to replace him was a far less accomplished jurist, having completed high school but never university or law school, compared to Bunleng’s formal legal training in Vietnam, Japan, and the United States, and also unlike Bunleng, had neither English nor French language skills.10 This would inevitably mean major delays in the judicial investigation, and it also looked like a potential violation of the UN-Cambodia agreement, which provided that KRT judges would serve for the duration of the tribunal.11 The internationals were immediately up in arms over the development. Within minutes of hearing that Bunleng was to be removed from the tribunal, International Co-Prosecutor Robert Petit confronted the director of court management for the national side, demanding to know if it was true.12 Indeed it was. This would go to the top, and quickly. Within days, Deputy Director for Administration Michelle Lee wrote to Director of Administration Sean Visoth, protesting that the move violated the articles of the UN-Cambodia agreement on the tribunal that provide that judges are to serve for the duration of the proceedings. “Such provisions were included in the Agreement and the Law to ensure the security of tenure of ECCC judges, and to safeguard the integrity and fairness of the proceedings,” Lee wrote.13 Visoth, apparently taken aback at the intensity of the response, wrote back to Lee the next day, responding that the appointment had been “entirely unexpected.” He noted that the existence of a reserve national

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co-investigating judge meant that such a development had been foreseen. “I would like to reassure you,” Visoth wrote, “that there is no intention for this appointment to impede or delay the proceedings in any way.”14 The internationals were not satisfied with the response. Very soon, UN Headquarters in New York was drafting a letter of protest to be delivered through formal diplomatic channels, escalating their concerns to the political level. The August 16 letter “invited the Cambodian authorities to consider keeping Judge You Bunleng in his current function as Co-Investigative Judge of the ECCC,” according to UNAKRT spokesman Peter Foster.15 But the UN was not finished, as additional organs piled on. Yash Ghai, the special representative of the secretary-general for human rights in Cambodia, and Leandro Despouy, the special rapporteur on the independence of judges and lawyers, released a statement denouncing the appointment as illegal under Cambodian law. Only the Supreme Council of the Magistracy could remove judges for disciplinary reasons, as Ly Vuoch Leng had been, and appoint new judges, as You Bun Leng had been, they wrote. Instead, “no meeting of the Council was convened,” and these actions had been taken at the request of the Supreme Council for State Reform, chaired by Prime Minister Hun Sen, following a proposal from the Council for Legal and Judicial Reform, co-chaired by Deputy Prime Minister Sok An and Supreme Court President Dith Munty.16 Government spokesman Khieu Kanharith rejected the broadside from Ghai and Despouy as “useless” and “misleading,” but Son Soubert, a member of the Supreme Council of the Magistracy, said, “If the appointment was made by other authorities than the Supreme Council of the Magistracy, then that would not be constitutional.”17 You Bunleng pledged that he would ensure an orderly transition that would minimize disruption to the KRT.18 “I think that there will be no delay—the process will continue. I will continue to work at the tribunal until the reserve judge can understand the cases.”19 Bunleng was elevated to his position at the appeals court on August 16—a position that also came with an appointment to the Supreme Council of the Magistracy20—which instantly transformed him into one of the senior legal officials in the country. Under the withering chorus of complaints from the UN, however, the Cambodian government began to backtrack. Government spokesman Khieu Kanharith suggested that Bunleng could do both jobs. “The function of the Appeals Court, it’s not daily work,” Kanharith claimed.21 Khieu

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Sameth, a member of the Supreme Council of the Magistracy, told reporters that Bunleng holding both jobs was a viable solution. “He can work to manage the administrative work at the Appeals Court and he can work at the Khmer Rouge tribunal. Maybe the Supreme Council can be OK with it.”22 Prime Minister Hun Sen settled the matter when he put out a statement saying that You Bunleng’s “role and duty as a judge at the Khmer Rouge tribunal should remain as before and . . . nothing should obstruct the process of the trial at all.”23 The episode illustrated once again who calls the shots in Cambodia, and how uncomfortable the classical legalists at the UN were with how the system functions there. Hard on the heels of the You Bunleng kerfuffle, another unexpected flap arose—this one involving some of the highest personalities of the nation. On August  20, a little-known “NGO” going by the name “Cambodian Action Committee for Justice and Equity” sent a statement to Heng Samrin, the president of the National Assembly, copying it to a bevy of journalists as well as other government agencies, including the palace. Signed by Serey Ratha Suon, the statement implored Samrin to convene a special session of the assembly for the purpose of revoking the immunity of former King Norodom Sihanouk, so that he might be subjected to the legal processes under way at the Khmer Rouge Tribunal.24 The ruling party and government immediately closed ranks around the former king. In the name of the CPP Permanent Committee, CPP Chairman Chea Sim wrote that the CPP “vehemently denounces and categorically rejects” the Ratha letter, “always remembers the most exalted deeds” of Sihanouk, and supported the ECCC “based on ensuring peace, stability, national unification, national sovereignty, and justice for the Cambodian people.”25 At a cabinet meeting, Prime Minister Hun Sen denounced the letter from Ratha, saying that it was aimed at destabilizing the nation.26 The next day, in a speech broadcast on television, Hun Sen argued that the Ratha letter was an “attempt to turn the victim into a criminal who will be indicted by the tribunal.”27 Sihanouk responded to all of this with gratitude, writing to Chea Sim to say he was “extremely touched by and wish to most profoundly thank for the statement issued on 24 August 2007 by the CPP, which has rendered justice to me.”28 Now, as it happened, OCP investigators had already carefully examined the role played by Norodom Sihanouk during (and before) the Khmer Rouge regime and had determined that he did not qualify as a candidate for

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prosecution, despite the fact that he was nominally the chief of state for most of the first year of the regime. But amid the clamor over the Ratha letter, one enterprising journalist was inspired to raise the question of Sihanouk with the KRT’s Office of Public Affairs. UNAKRT spokesman Peter Foster simply stated that it was the responsibility of the co-prosecutors and the co-investigating judges to determine who would be prosecuted, helpfully adding that the former king might well be asked to testify about what he knew of the Khmer Rouge regime.29 That is when all hell broke loose. Cambodian government officials began to threaten the internationals at the KRT, despite the fact that no judicial officers of the court had suggested an interest in the former king. “If one dares [to invite Sihanouk to testify],” Minister of Information Khieu Kanharith warned, “we will decide to stop [working with] the tribunal.”30 Sihanouk decided to take matters into his own hands. On August 30, he posted a notice on his website that was oddly addressed to the prime minister, stating, “I have the honor of bringing to the very high knowledge” of Hun Sen that he was inviting UNAKRT spokesman “Peter Foster and (other) volunteer Members of the ECCC’s UN” to an event at the palace on September 8.31 “I am expressing to H.E. Samdech Hun Sen,” Sihanouk continued, “my most affectionate, moved and admiring gratitude for His noble and so equitable position taken in my favor.”32 The event for Mr. Foster would include a three-hour “conversation” in which Sihanouk would discuss the “Khmer Rouge and Norodom Sihanouk Affair.”33 The event would be broadcast live on Television Kampuchea, as well as recorded for showing in each province, “by alphabetical order.” The judicial authorities on the international side of the court quickly determined that neither Peter Foster nor anyone else would attend the event that the former king had planned. According to Nguon Nhel, deputy president of the National Assembly, however, an invitation from the former king was not optional and could not be declined. “This is the retired King’s decision. It is inviolable,” said Nhel.34 UN officials scrambled to draft a letter that they hoped would soothe the former king, while explaining that coprosecutors and co-investigating judges had certain legal procedures they were obliged to follow in the course of investigations, and a televised tea party at the Royal Palace was not one of them. In formal French, and addressing Deputy Prime Minister Kong Sam Ol, the Minister of the Royal Palace, KRT Deputy Director of Administration Michelle Lee wrote, “I can assure you that Mr. Foster did not have the intention of attacking the honor

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of His Majesty King Father.”35 In noting that Foster was not authorized to carry out investigations, the letter unfortunately added that “only the ECCC judges have the competency to determine who must be heard as witness.”36 This was not what the former king wanted to hear; in his view, only Sihanouk had the competency to determine whether Sihanouk must be heard as a witness. On his copy of the letter, Sihanouk underlined that sentence, annotated it, and posted it on his website, writing, “In a very recent handwritten text for the general public, I already said everything as a ‘witness.’ I have nothing to add to this. Consequently, I will have nothing more to say to these judges.”37 The letter from Michelle Lee to Kong Sam Ol did not explicitly say that no international personnel from the KRT would attend Sihanouk’s September  8 “conversation.” Consequently, at the appointed hour, Television Kampuchea broke away from its regularly scheduled programming and went live to the Royal Palace to cover a special event, showing a room with a large circular table, more than a dozen chairs and a side table of snacks, with nervously fidgeting royal servants. The hours ticked by, and at noon, it became apparent that no “ECCC UN” staff had accepted the invitation to the former king’s conversation. Sihanouk had noted in his “Communiqué” inviting Foster to the conversation that it was a one-time-only offer: “If the ECCC’s UN does not accept this date and these hours (from 9 a.m. to Noon), I do not accept and will not accept to see, nor talk to, nor correspond with the ECCC’s UN anymore.”38 Over the course of the autumn in a series of French-language handwritten notes posted to his website under the title Etudes Cambodgiennes (“Cambodian Studies”)—despite his previous vow that he had nothing more to say to the judges of the ECCC—Sihanouk commented at some length about various aspects of his political history and how “certain foreigners” were “unjustly annoying him in the name of your ECCC UN!! Long Live Kafka!”39 Soon Prince Sisowath Thomico was writing to the prime minister, urging him to shut down the KRT. “I am certain that this tribunal (KRT) will foment political movements and causes our country to lose peace and stability in the future.” 40 But the government was apparently satisfied that its point had been made. Just as word of Thomico’s demand for the dissolution of the tribunal came into public view, it was overtaken by the far more spectacular news that the tribunal had taken Nuon Chea into custody. And that news was

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well reported, considering that at every node of highly confidential judicial operation, designed to bring Nuon Chea safely and securely from his home in northwestern Cambodia to the tribunal outside Phnom Penh, there were photojournalists and reporters waiting to record the event—inside Nuon Chea’s home, in his driveway, on the road to the nearby helicopter landing site, at the helicopter landing site, at the Pochentong military air base, at the gates of the air base, along the road from the airport to the tribunal, at the front gate of the tribunal, at the back gate of the tribunal, at the bottom of the stairs leading to the hearing room, and, remarkably enough, even in the supposedly secure room where Nuon Chea’s initial hearing was conducted by the co-investigating judges.41 Four days prior to the arrest operation, international journalists based in Phnom Penh began to get calls from a senior Cambodian military commander, offering to sell information about an upcoming newsworthy event and to arrange entry to otherwise secure locations. Apparently none of the international journalists took the offer, but it did generate numerous inquiries to the court seeking confirmation.42 Cambodian reporters seem to have been somewhat less strict vis-à-vis journalistic ethics. In fact, it turned out to be a busy day in the Office of Co-Investigating Judges. In addition to the arrest of and initial hearing for Nuon Chea on September 19, on the same day, the co-investigating judges created Cases 001 and 002.43 They determined that the case against Kaing Guek Eav alias Duch was relatively self-contained and at an advanced stage of investigation, while the facts concerning the remainder of the accused persons in the first Introductory Submission would require significant additional investigation. Moreover, the co-investigating judges determined, “opening a public hearing in the near future is substantially important to the credibility of the court,” so they would separate Duch from the others and move to complete the investigation into his case file first.44 Duch’s file would be designated as Case 001, while Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith would compose Case 002. After a brief interval reassessing their relationship with Cambodia’s security forces following the leak to the media of the Nuon Chea arrest plans, the co-investigating judges in November decided to detain the remaining three suspects. The plan was to arrest Ieng Sary and Ieng Thirith on Monday, November 12, and then bring in Khieu Samphan on Friday, November 16.45 Determining where to find Sary and Thirith was serendipitously

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FIGURE 8.2. Timelines for Cases 001 and 002

facilitated by the surprise discovery that, entirely by coincidence, they happened to live next door to the house rented by Christian Baudesson, one of the international investigators in the Office of Co-Investigating Judges.46 In contrast to the drama of the Nuon Chea arrest, the detention of the Iengs was smooth and uneventful.47 Khieu Samphan’s detention would be anything but uneventful. The day after the arrest of Ieng Sary and Ieng Thirith, Samphan held a book launch event in the northwestern border town of Pailin to celebrate the publication of his new history of Democratic Kampuchea.48 Later that day, however, Samphan suffered what appeared to be a stroke, and local leaders decided that he should be rushed to a hospital in Bangkok.49 Deputy Prime Minister and Interior Minister Sar Kheng just happened to be in Battambang province, and, already aware of the impending arrest warrant, refused permission for Samphan to travel to Thailand.50 In the process, the deputy prime minister inadvertently revealed to the media that Samphan’s arrest had been scheduled for Friday. The next day, Hun Sen’s personal helicopter, along with a squad of his elite personal antiterror commandos and a group of medical evacuation specialists, was sent to Samphan’s home to transport him to Calmette Hospital in Phnom Penh. He was held at the hospital, still

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in the custody of Hun Sen’s antiterror commandos, and his lawyers and his family were refused access.51 Still in possession of his cell phone, however, Samphan gave numerous interviews to journalists, urging people to buy his new book.52 Given the odd situation, the co-investigating judges abandoned their plan to take Samphan into custody on Friday. After a weekend of hasty negotiations and a determination that Samphan’s health had stabilized, a compromise was brokered. In a tightly choreographed maneuver, the commandos were withdrawn, Samphan’s international lawyer, Jacques Vergès, rushed to his side in the hospital room, and then court officials arrived to inform Samphan that he was invited to the KRT for a chat with the coinvestigating judges. At 11 that evening, after nine hours of intense discussion, the judges issued a detention order.53 By coincidence, the first public hearing at the KRT—a bail hearing for Duch before the Pre-Trial Chamber— was held the same day.54 The Khmer Rouge Tribunal was now fully up and running. CASE 001

In many ways, the KRT’s first case, against Kaing Geuk Eav alias Duch, was seen as a test run of the court’s machinery before moving on to the much more complicated Case 002, which would involve four accused, a significantly broader range of alleged crimes, and presumably, a far larger group of civil parties. Case 001 served that purpose well, revealing numerous flaws in the functioning of the Internal Rules and the organization of the court, particularly in the initial unwieldy scheme for civil party representation. Trying the Duch case first would also allow the court to nail down one particularly important crime scene—the S-21 prison—which figured prominently in the charges against the accused persons in Case 002, insofar as they were all alleged to have sent subordinates there. Nuon Chea was also alleged to be Duch’s direct superior. One additional characteristic distinguished Duch’s case from the other four named in the first Introductory Submission: Duch’s defense attorney had made it clear that, unlike Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith, his client was prepared to effectively confess to the basic outlines of the accusations against him. Consequently, the investigation of Duch’s case by the co-investigating judges began with a series of long interviews in which the judges probed Duch’s version of his story and measured it against the allegations in the

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Introductory Submission. The judges also interviewed more than three dozen surviving former S-21 staff members as well as the handful of surviving prisoners, the better to compare Duch’s recollections with those of other firsthand witnesses.55 Finally, additional witnesses were summoned or sought out and interviewed, such as couriers who carried documents back and forth between S-21 and senior leaders and others who were believed to have knowledge of one or another aspect of the prison’s operations. Combined, these witnesses added up to a substantial number of people with firsthand knowledge about what had happened at S-21. A highly challenging aspect of the judicial investigation concerned contemporaneous documents created during the Khmer Rouge regime. A great many such documents had survived down through the years, including copies of the Communist Party of Kampuchea journals, Revolutionary Flag and Revolutionary Youth, minutes of Standing Committee meetings and meetings of the general staff, and telegrams sent between the party center and zone or sector chiefs. There was also a very large amount of material from S-21 itself, such as photographs, prisoner lists, execution logs, notebooks kept by S-21 staff, and of course thousands upon thousands of confessions. The investigating judges devoted a great deal of resources both to authenticating these documents and to analyzing them. The judges examined in great detail the provenance of the S-21 documents, tracing their custody from the day of their discovery on January 14, 1979, to the present.56 For many of the documents, it was possible to identify surviving individuals who either created them, such as interrogators who extracted confessions from S-21 prisoners, or handled them, for example, encryption officers or telegraph operators who encoded and transmitted telegrams, and then to present those documents to them for authentication. Most helpfully, Duch himself confirmed the authenticity of essentially all the purported S-21 documents that were presented to him.57 One of the most spectacular—and controversial—aspects of the judicial investigation in Case 001 occurred when the co-investigating judges staged a “re-enactment” by taking Duch, along with several former S-21 staff members and victims, to the scene of the crimes, at the Tuol Sleng Museum of Genocide, located on the former site of S-21, and the mass graves at the “Killing Fields” of Choeung Ek. Both sites are now major tourist attractions. The emotional impact of this exercise upon Duch was dramatic. At the Choeung Ek “Killing Fields,” for example, there is a tree next to a pit where

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the remains of a large number of children were exhumed, and informational signage asserts that children were dashed against the tree to kill them. At the base of the tree that day, there was a small jumble of tiny human bones. After the judges had finished questioning Duch and former Choeung Ek executioners at this particular location, Duch knelt down to the pile of tiny bones, neatly rearranged them, then prostrated himself in the dirt before them, with tears streaming down his cheeks.58 Equally intense scenes awaited the next day during the “reconstruction” at the Tuol Sleng Museum of Genocide. At one point, Duch’s international defense attorney, François Roux, secured permission from the judges for Duch to read an apology he had prepared for the three surviving victims who were present, Vann Nath, Bou Meng, and Chum Mey.59 Sobbing, Duch stammered through his apology, begging for forgiveness from his victims, while Vann Nath impassively stared at the ground. When Duch was done, Nath had nothing to say in response. Bou Meng exclaimed that he had been waiting for nearly thirty years for this moment, and that he was now satisfied. Chum Mey attacked, shouting that Duch had confessed, and it was now the responsibility of the co-prosecutors to ensure that he was severely punished for his admitted crimes. Though there was a large crowd of eighty-some court personnel involved in the reconstruction, along with an approximately battalion-strength contingent of police and military to secure the two sites, no journalists were permitted to record the event—aside from a handful who managed, by means of camouflage, stealth, or bribery, to infiltrate the scene before being discovered and detained by security.60 Many journalists were bitter at having been excluded, and the bitterness erupted into rage when it became known that the international co-investigating judge had brought along a French film crew to make a documentary of his investigation.61 The anchorman of one prominent Cambodian television network was so enraged that he announced a boycott on coverage of the court.62 In the ensuing brouhaha, Judge Lemonde insisted “that the documentary will be released only after all ECCC trials, including appeals, have been concluded.”63 The resulting film was aired a matter of weeks after the conclusion of the appeal following Duch’s conviction, but years before the end of all the ECCC trials.64 In the end, it was little more than a tempest in a teapot, but such little storms seemed to be more or less continual at the KRT.

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GRILLING THE ELEPHANT

As the OCIJ crunched toward a Closing Order in the Duch investigation and the staff of the OCP struggled to prepare the Final Submission in the case, at the beginning of March 2008, the international co-prosecutor met with his national counterpart to discuss a second batch of suspects, the socalled “most responsible.” National Co-Prosecutor Chea Leang was deeply unenthusiastic about the idea, but did not directly oppose proceeding with any of the proposed new suspects.65 Leang then duly reported the meeting up her chain of command. In late May 2008, Deputy Prime Minister Sok An summoned his niece, Chea Leang, and her assistant, Deputy National Co-Prosecutor Yet Chakriya, to his farm outside Phnom Penh for a conference.66 Sok An began the meeting by observing how disturbed he had been when it came to his attention that Leang’s office was continuing to investigate additional suspects for prosecution. Chea Leang protested, truthfully so, that she had not been investigating anyone. He thought he had made it very clear, Sok An continued, that there were to be five persons, and only five, prosecuted by the tribunal. But evidently, he had somehow failed to communicate this. At this delicate juncture, the older, more experienced, and decidedly more self-assured Yet Chakriya somewhat recklessly intervened in Sok An’s lecture. Your Excellency, Chakriya said, if we can just do two or three more, it will satisfy the foreigners, and it won’t cause any problems. The suspects they have in mind committed horrible crimes and deserve to be punished. These suspects are not people we care about, it won’t lead to unrest or instability, and everyone will be happy. Sok An shot a withering glance of contempt at Chakriya and returned his gaze to his now fully terrified niece. It is your responsibility to make sure that doesn’t happen, he told Leang. And from what I hear, it seems that you have not been taking care of your responsibilities! But, Uncle, Leang cried! I can’t help it! These foreigners won’t listen, and they just do whatever they want! Well then, Sok An replied, if you are incapable of properly carrying out your assignment, I will just have to do it myself. We will “grill the elephant.” Chakriya was now staring at the floor, embarrassed and dejected that it had come to this. “Grill the elephant?” queried Leang. Yes, Sok An answered, grill the elephant. If the foreigners insist on defying me, then there are many ways we can bring this

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court to its knees. We can make the process move so slowly that there will never be any trials at all, much less more trials than we desire. The elephant is too big for them to eat, so I will begin preparing it for them. And with that, he dismissed them. There was only one problem with Sok An’s strategy. The foreigners believed that in fact they did know how to eat an elephant: one bite at a time. As OCP staff labored away on the Final Submission for Duch, they realized that the co-investigating judges had charged him only with international crimes, not with the national crimes—torture, murder, and religious persecution—that the co-prosecutors had requested in the Introductory Submission. A formal request to the co-investigating judges to reconsider this issue and add national crimes to the charges was promptly rejected. A short while later, the aroma of roasting pachyderm began to waft through the hallway of the OCP offices. In early June, Chea Leang announced to her international colleague that as a matter of national pride, national conscience, national history, and national sovereignty, she was going to insist on charging national crimes, and therefore she wanted to appeal the decision of the investigating judges to the Pre-Trial Chamber. International Co-Prosecutor Petit was firmly opposed to the idea, reasoning that it was not necessary and would delay the proceedings, probably by months. Leang insisted that she felt very strongly about the issue, so consequently, she would go to the director of administration and inform him that there was a dispute between the national and international co-prosecutors to be decided by the Pre-Trial Chamber.67 On June 16, the national co-prosecutor attempted to file a notice of appeal to the Pre-Trial Chamber, signed solely by her, requesting that the decision of the co-investigating judges on national crimes be overturned. The greffier took one look at the two-page document and rejected it as a defective filing. It was the first filing that the national staff of the OCP had ever prepared without any assistance from the internationals in the office, and it was not in the required technical format.68 The nationals then huddled in an emergency attempt to correct the deficiencies so that they could try again to submit the document. But now the cat was out of the bag, and the national co-investigating judge was irate. He called the national co-prosecutor to his office the next morning and told her that she—a ruling party member considerably junior to him—was attempting to impugn a judicial order that he had signed. This was unacceptable to him. Furthermore, three days hence,

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on Friday, June 20, the court’s donor community was meeting in New York to consider a request for $100 million that the court desperately needed in order to continue functioning. It would be quite unseemly if a dispute were to erupt between the co-prosecutors just as the donors were considering whether the court was worthy of a massive increase in funding. Consequently, Judge You Bunleng concluded, he strongly recommended that she find another way to resolve the dispute with her international counterpart.69 It would not take long. The following day was a national holiday, the Queen Mother’s Birthday, so the national staff was absent from the office. On the subsequent day, Thursday, June 19, the entire national and international staff of OCP gathered at the start of the morning to celebrate the birthday of one of the international staff. As they noshed on croissants and sipped fruit juice, the national co-prosecutor called everyone to attention and declared that she had a few words she would like to say. She began by explaining that, as everyone knew, she had filed a notice of appeal, signed only by her. She had done this, she said, because she had analyzed the law and determined that the law required her to take this action. Then, she continued, she had gotten to thinking about how cooperatively the nationals and internationals in the office had been working, and what a shame it would be to disturb that cooperation with a dispute. And so, she concluded, she had decided to withdraw the filing so that the cooperative atmosphere in the OCP could continue.70 Chea Leang’s remarks were greeted with a rousing round of applause, along with some considerable bewilderment on the part of the office’s young interns. So it was that the grilling of the elephant was postponed—but not for long. RUPTURE

With the arrests of five suspects, a new category of participant arrived on center stage at the KRT: the defense attorney. Each accused person would have at least one Cambodian lawyer and one international lawyer to lead his or her defense. During the planning of the court, diplomats and UN officials had long been worried that it would be difficult to attract first-rate talent to a Cambodia tribunal, but in the event, this turned out to be a completely unwarranted concern. Defending Duch would be François Roux, the first defender to win an acquittal at the International Criminal Tribunal for Rwanda (ICTR),71 who had also practiced at the International Criminal

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Court.72 Defending Ieng Sary would be Michael Karnavas, then president of the Association of Defense Counsel of the International Criminal Tribunal for the former Yugoslavia, with extensive experience in international criminal defense.73 Defending Ieng Thirith would be Diana Ellis, a Queen’s Counsel in England, with experience at the ICTR.74 Defending Nuon Chea would be a team of attorneys from the Netherlands, led by Victor Koppe75 and Michiel Pestman, bringing experience from the Special Court for Sierra Leone and the International Criminal Tribunal for the former Yugoslavia.76 And finally, defending Khieu Samphan would be his old friend, the notorious French criminal defender Jacques Vergès, who was known as the “Devil’s advocate” for his long list of unsavory clients, including Carlos the Jackal, Klaus Barbie, and Slobodan Milosevic.77 Vergès was far and away the most famous among this elite group of international criminal defenders. He had befriended Khieu Samphan during their student days in Paris; they had been drawn together by their mutual interest in left-wing politics, or perhaps more accurately, drawn in by Vergès’s role in a communist front organization, the International Students’ Union.78 He put Samphan and other young Cambodians who would later staff the upper echelons of the Khmer Rouge regime into contact with anticolonial students from various French colonies, particularly Vietnam, and helped guide them all toward Soviet support organizations. According to at least one authority, it was also Vergès who inducted Samphan into the French Communist Party.79 Vergès would eventually make his name with his own anticolonial activism in Algeria, where he became a defender of independence activists facing terrorism charges before a French military tribunal. Vergès’s most noteworthy anticolonial case was that of Djamila Bouhired, a fighter for the Algerian National Liberation Front captured in 1957. She was convicted and sentenced to death, but Vergès continued to argue her case in the court of public opinion, creating a firestorm of controversy that eventually led to her pardon. His arguments did not address the question of Bouhired’s guilt or innocence, but rather attacked the legitimacy of the tribunal itself, and along with it, the morality of France’s colonial adventure in North Africa. Revelations that Bouhired had been tortured during her interrogation proved incendiary. Vergès maintained that his client’s cause was just, that of his accusers unjust, and over time this view prevailed with the French public. France sued for peace in the brutal war, Algeria

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became independent, Vergès’s client was released, and “la défense de rupture” was born. Though Vergès did not invent the theory underlying the rupture strategy,80 he did become its most celebrated practitioner.81 By the time Vergès arrived in Cambodia to defend Khieu Samphan, however, he was nearing the end of his career, and he seemed no longer to have quite the flair that had graced so many of his previous cases. He launched his trademark rupture defense, but his initial line of argument was puzzling: the KRT was illegitimate, Vergès argued, because some of the documents pertaining to Khieu Samphan’s case had not yet been translated into French. It was certainly true that the KRT faced major translation challenges, with tens of thousands of pages of often highly technical material needing to be rendered into the three languages of the court. As a court monitor reported in September 2007, “Major backlogs and delays in the translation of documents are reportedly hindering the progress of work in the Office of CoProsecutors and the Office of Co-Investigating Judges. The multinational staff of these offices cannot prepare cases for trial without an enormous increase in translation services.”82 The same challenges affected the work of defense teams as well. Thus when Vergès rose to address the judges in his first appearance before the Pre-Trial Chamber, he insisted that the lack of a comprehensive French version of the case file prevented him from properly representing his client, and thus the charges against Samphan were “illegal.”83 He then stormed out of the hearing. “French is an official language of the tribunal. There is not one page of the case file against Mr. Samphan translated into French,” Vergès told journalists, exaggerating wildly. “I should be capable of knowing what my client is blamed for.”84 The judges were not impressed by the display and issued a formal warning to Vergès for refusing to represent his client and delaying the hearing.85 An important element of the rupture strategy is delay, so that the judicial process unfolds as slowly as possible, and preferably not at all. For many months, Vergès stuck with his insistence that he was unable to represent his client because the documents had not been translated. In addition to challenges to the legitimacy of the institution, another key element of the rupture strategy is to create a sense of chaos, so that the judicial process can be depicted in the media as out of control. At the next hearing for Khieu Samphan, on December  4, Vergès continued on the theme of injustice due to lack of French translations. Referring to French contributions toward the KRT budget, he insinuated that corruption or

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mismanagement was the cause of the translation delay. “Money has been used in a manner for which it was not intended. What have you done with this money? Five million dollars and you can’t translate 60,000 pages?”86 Deputy Co-Prosecutor Bill Smith clarified that there were actually less than 3,000 pieces of evidence yet be translated into French, and that moreover, “not one translation has been requested in the last sixth months by Khieu Samphan’s team.”87 At a posthearing press conference, Vergès ranted for half an hour, slamming his fist on the table and jabbing his finger in the air. He railed at the purported “injustice” being visited upon his client until some of the civil parties in the audience couldn’t take it anymore and erupted in anger. The press conference descended into a shouting match, and finally Vergès and his co-counsel, Sar Sovan, nearly came to physical blows with the civil parties before the defense lawyers and victims were separated by security officers. The civil parties were enraged by the encounter, sharing their anger with journalists in colorful ways. “If I could tear him away and eat him and it wasn’t against the law,” civil party Sok Chea said of Sovan, “I would do so now.”88 Summarizing the press conference, KRT Press Officer Reach Sambath concluded, “It was anarchic.”89 It was not, as they say, Vergès’s first rodeo. As Sovan later explained in court, “We provoked them actually, they were provoked to start the violence.”90 In early 2009, the Pre-Trial Chamber dismissed Khieu Samphan’s appeal to have the entire case file translated into French, and Vergès began casting about for new lines of attack on the KRT.91 Another hearing of the PreTrial Chamber was scheduled for April 3, 2009, so the day before, Vergès gathered with lawyers from other defense teams to discuss strategy.92 A central item on the agenda was how to use the issue of alleged corruption at the court to the advantage of the defense. At dinner that evening, Duch’s international defender, François Roux, encouraged Vergès to put forward the challenge. “You really should raise the corruption issue,” Roux implored him. “You’d get a second warning.” Vergès had already decided. “Last time, I was thunderous,” he replied to Roux. “Tomorrow, I will be perfidious.”93 In court the next day, Vergès held back most of the morning, permitting his Cambodian co-counsel to lay out the legal arguments. Finally Vergès took the floor and announced that he would like to discuss the question of corruption at the court. Judge Downing interrupted him, instructing Vergès that it was not an appropriate time to introduce new questions, and that he

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should confine himself to responding to the co-prosecutors’ arguments. That was Vergès’s cue to unleash his tirade. So, with your leave, I shall not raise a new issue, I shall follow your guidance, but I would like to explain why I am not insisting, in line with what happened with the civil parties this morning. I shall be very brief. First of all, I shall remain silent because I need not be more careful about your honour than you are yourselves. If you believe that we should not talk about corruption here I shall not impose such a debate upon you. I shall keep silent because I understand your caution in this respect, and I believe that the presumption of innocence that you sometimes question in respect of our accused might be beneficial to you. And I shall also remain silent because the head of state, of this state, has publicly stated that he wants this chamber to be brought to a conclusion. In this sense, you are mere squatters. A member of the government that accommodates you here says that you’re obsessed only by money, thus corroborating the accusations, be they grounded or not, regarding corruption that might possibly be plaguing this tribunal. And once again, still being brief, I shall stay silent because it’s not good to be shooting on ambulances and victims and the wounded, it is not good to be shooting on houses and dying people or institutions.94

Although the judges did not rise to take the bait, Senior Assistant CoProsecutor Vincent de Wilde d’Estmael could not resist the opportunity. “You heard the international co-lawyers, in a few sentences,” d’Estmael began, “explicitly and fundamentally challenge the existence of the ECCC, its legitimacy, the length of its duration and made particular reference in doing so to the Pre-Trial Chamber.”95 There had been a full year of delay in the case due to the defense’s tactics, d’Estmael argued. “This is a strategy of disruption on the part of the defense,” he flatly told the judges.96 “This strategy on which this international lawyer has based all his career consists in willfully disrupting and delaying proceedings so that no trial worthy of the name can be concluded within a reasonable time frame. Can this Chamber afford to continue to tolerate such a strategy before the ECCC?” The co-prosecutor then demonstrated that he understood well the roots of Vergès’s methodology. “Does this strategy—does it have any relevance before a Court such as ours, when decolonization and the Cold War are now well behind us?”97 Later that afternoon, back in the office, Vergès gloated to Roux about his theatrics in the courtroom. “I think this tribunal is over,” he told his

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colleague. “And I think I made my contribution, by turning the possibility into a probability. I tell you, it was like saying to a call girl, ‘You’re such a whore.’ ”98 But in fact it was Roux who was right. That day’s antics drew a second formal warning for Vergès from the court, and it was his role in the tribunal that was very nearly over. The Pre-Trial Chamber described Vergès’s behavior at the April 3 hearing as “abusive and insulting” toward the judges, and the allegations that he had made as amounting to “an offensive and obstructive conduct.”99 “From the first time that Mr. Vergès appeared before the Pre-Trial Chamber on 23 April 2008,” the chamber warned, “he has refused to participate meaningfully in the hearings.”100 Should his conduct continue to be obstructive, the chamber concluded, it would impose sanctions against him. Henceforth, Vergès refrained from obstructive behavior, but his “meaningful” participation in court would be almost nonexistent. Between the April 3, 2009, hearing and Vergès’s death on August 15, 2013, Khieu Samphan’s legal team participated in at least 220 days of hearings.101 Among all of those days, Vergès appeared in court only nine times, spoke only three times, and offered substantive comments only twice. The last time he delivered substantive comments in a KRT courtroom was on January 25, 2012. The Trial Chamber had called the deputy director of the Documentation Center of Cambodia to testify about the provenance of documents in the Documentation Center’s archives, many of which had been placed in the case file by the co-prosecutors and the co-investigating judges. Vergès challenged Dara Vanthan on the sources of the Documentation Center’s funding, the provenance of the documents, and the role of Vietnam in assisting his work.102 None of these queries gained any traction. Finally, addressing the judges, he said, “My questions might be a bit disturbing, but I—as a lawyer, I must do so even if my attitude might seem a bit difficult for political reasons.”103 With that, Vergès completed his substantive contributions to oral argumentation at the Khmer Rouge Tribunal. It was a sad denouement for the master of rupture. But it would certainly not be the end of the rupture strategy at the KRT. By this point, in his own mind at least, Vergès had become bigger and much more important than any of his clients. It was as if he had become a character in a play written by himself. And in fact, that is exactly what had happened. “Serial Plaideur” was an autobiographical play, written by and about Vergès, and performed by him on the stage as a one-man show. It was

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a natural evolution for Vergès, who had always treated his legal advocacy as a form of theater, in the courtroom as well as in the court of public opinion. The play valorized the law not as a search for truth, but as a struggle between power and those who stand against it. That perspective, and the theatrical approach to realizing it, endures after Verges’s demise as an inspiration to his heirs. As Vergès’s younger colleague Michiel Pestman has noted, the Nuon Chea team’s approach to the trial was “inspired by the rupture strategy.”104 THE DUCH TRIAL

On May 15, 2008, the Office of Co-Investigating Judges issued a Rule 66 Notification in Case 001, informing the parties that the judges had completed their investigation.105 This signaled the beginning of a race of sorts. Upon the Rule 66 Notification, the parties have fifteen days to request further investigations.106 If the judges reject an investigative request, the party in question has thirty days to appeal the rejection. When that thirty-day period expires or is waived, or any appeals have been heard, the co-investigating judges forward the case file to the co-prosecutors. At that point, the coprosecutors have forty-five days (or ninety days, if the suspect is not in custody) to deliver a Final Submission to the co-investigating judges, describing what crimes, if any, they believe the evidence in the case file proves.107 Upon receipt of the Final Submission, the co-investigating judges issue a Closing Order, which either dismisses the charges against the accused person, or sends the accused person to trial. In preparing the Closing Order, the judges are not obliged to take into account the views expressed by the co-prosecutors in the Final Submission, but in the event of a trial, the co-prosecutors are required to carry forward the case as laid out by the coinvestigating judges in the Closing Order, with which the co-prosecutors may or may not agree. And this is where things get a little odd. In cases such as those before the KRT, the Final Submission is an exceptionally complex and lengthy document that certainly cannot be prepared in a mere forty-five days. In reality, it will have been in preparation for many months prior to the Rule 66 Notification and should be nearing finalization by the time the co-investigating judges announce that they have completed their investigation. Of course, the co-prosecutors are responsible for monitoring the progress of the judicial

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investigation as it goes along by studying the case file, but the coinvestigating judges have the discretion to place material in the case file at any time, prior to issuing the Closing Order. Thus it may be—and indeed this is exactly what happened at the KRT—that the co-investigating judges choose to withhold very large amounts of evidentiary material that they have developed in the course of their judicial investigation, then dump it into the case file at the very last moment. This may well deprive the coprosecutors of the opportunity to carefully consider that material and properly integrate it into their Final Submission. It is a strange way to run a legal process. A few particulars will illustrate the difficulties introduced by this arrangement. The co-prosecutors completed the preparation of their Final Submission in the Duch case on July 18, 2008, and delivered it to the coinvestigating judges just before the deadline. But the judges had placed key records from the judicial investigation in the case file only shortly before that. For example, the “reconstruction” exercise at Tuol Sleng and Choeung Ek was conducted in February 2008, and the reports on that exercise prepared by the staff of the co-investigating judges were completed on April 11.108 And yet, according to the stamp of the case file officer appearing on the first page, they were not placed in the file, and thus made available to the parties—including the co-prosecutors—until June  30, 2008, barely two weeks before OCP delivered the Final Submission. At that point, the completed Final Submission had been with the translators, being rendered into French and Khmer from the original English, for nearly three weeks.109 As a result, the co-prosecutors were never able to consider a significant amount of evidentiary material from the judicial investigation prior to finalizing their Final Submission. The co-investigating judges delivered their Closing Order indicting Duch on August 8, 2008.110 The co-prosecutors promptly appealed to the Pre-Trial Chamber, citing two grounds.111 First, the Closing Order did not indict Duch for national crimes under the 1956 Penal Code, including homicide and torture.112 Second, it did not indict Duch for committing crimes at S-21 via participation in a “joint criminal enterprise” (JCE).113 The Pre-Trial Chamber decided unanimously to grant the first ground of appeal and dismiss the second.114 And with that, they indicted Duch and sent him to the Trial Chamber. The ECCC’s first trial would soon be up and running.

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The Trial Chamber convened the initial hearing on February 17, 2009.115 In an ordinary civil law trial, the judges rely upon their reading of the case file to reach a judgment, so trials tend to be rather brief affairs. But the KRT was by definition extraordinary. It quickly became clear that the Trial Chamber would adopt a unique, hybrid approach to the trial that blended the common law adversarial approach with the civil law inquisitorial approach. The judges decreed that evidence would only be considered when it had been “put before the Chamber,” which meant that some mechanism had to be found to introduce many thousands of pages of documents and a potentially very large number of witnesses in open court.116 This had some advantages. One key advantage was that presenting the evidence in court would help to inform a Cambodian public that had been asking the same question for decades: Why? It would also relieve the Trial Chamber judges of the burden of studying a case file that had grown to hundreds of thousands of pages. But there were disadvantages as well; a key one was that it would take much more time than the traditional civil law trial. Courtroom presentations and adversarial arguments among the prosecution, defense, and civil party attorneys would go on for seventy-seven days of hearings. The Trial Chamber judges in the Duch trial heard nine expert witnesses, seventeen fact witnesses, seven character witnesses, and twenty-two civil parties—a small fraction of the witnesses in the case file. Finality in the case would not be reached for nearly three full years from the initial hearing.117 An aspect of the civil law system that is alien to those familiar only with common law approaches is the institution of the “civil party.” In common law, there are two parties in a criminal proceeding: the prosecution, representing the state or “the people,” and the defense, representing the accused. In civil law systems, there can be a third party in a criminal proceeding, the civil party, someone who alleges injury as a consequence of the crime in question and joins the criminal proceeding in an accompanying civil action seeking damages from the accused. In common law systems, by contrast, criminal and civil actions are conducted as entirely separate proceedings. When dealing with mass atrocity crimes, such as genocide or crimes against humanity, the number of individuals alleging they have suffered injury as a result of the crimes can be quite large. The KRT was the first internationalized court to attempt this, and it involved a good deal of growing pains as the court stumbled along for quite some time toward a

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workable framework for integrating what would become a massive group of civil parties into the proceedings. In the Duch trial, however, the court was presented with a relatively small group of civil parties, numbering fewer than one hundred. They were divided somewhat arbitrarily into four groups represented by separate teams of civil party attorneys. A number of relatively high-profile international attorneys populated the various teams, and some of them seemed much more interested in seeking publicity than in focusing on the nitty-gritty of day-to-day courtroom work. Many of the young Cambodian attorneys appeared to have very little experience in litigation and were often out of their depth when speaking in court. The combined effect was often chaotic in the civil party corner of the courtroom. There was a great deal of repetition from differing civil party attorneys speaking in turn, and also a great deal of objection from the defense that the civil party attorneys were acting as auxiliary prosecutors. In one such exposition from international defense attorney François Roux, he explained his concerns for his client’s fair trial rights. “In proceedings such as this one dealing with mass crimes, if you have one, two, three, five, 10 or 20 or more civil parties who come and let out their legitimate suffering then we find ourselves in a situation that is unimaginable from the point of view of a fair trial because the accused is no longer facing one prosecutor but 20, 30, 50 prosecutors.”118 After the chaos that was civil party representation in the Duch trial, the Trial Chamber judges ushered through a series of changes to the court’s Internal Rules that created “Lead Co-Lawyers,” a national and an international civil party attorney who would represent the civil parties as a whole, and to whom all civil party attorneys working with individual clients would report. This technical change put the civil party representation scheme on par with the coprosecutors and the national-international team of defenders for the accused. Notwithstanding the sometimes unruly conduct of the civil party attorneys, generally speaking, legal observers appeared to conclude that the trial was conducted in a reasonable fashion, though many felt that it was marred by its bizarre conclusion.119 The first hints of what was to come surfaced on the second day of the trial, when during his opening statement, Duch’s national defense counsel, Kar Savuth, appeared to question whether or not the court had the jurisdiction to try his client. Savuth said that the personal jurisdiction of the court included “senior leaders” of the Khmer

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Rouge and those “most responsible” for the crimes, then asserted that only fourteen individuals fell into those two categories. Duch was not among them, he insisted.120 Late in the day, International Co-Prosecutor Robert Petit raised this question with the judges. “Now, I respectfully submit that this Chamber must request the defence, purely, unambiguously, to state if indeed, it intends now, or at any time during the proceedings to challenge the jurisdiction of this court or its legality.”121 The next morning, the president of the Trial Chamber, Judge Nil Nonn, did indeed address this question to Kar Savuth. In response, Savuth correctly noted that he could have raised the jurisdiction issue during the initial hearings—indeed, according to Rule 89, the only appropriate time to raise such a question is within thirty days of the Closing Order, long past in this instance.122 “I do not intend to challenge the jurisdiction,” Savuth unambiguously declared.123 Fast-forward from opening arguments at the end of March 2009 to the closing arguments at the end of November. Duch’s international defender, François Roux, had spent the previous eight months diligently developing a strategy of mitigation, repeatedly insisting that, even though there is no such thing as a guilty plea in the civil law system, his client in fact was pleading guilty, demonstrating deep remorse, regularly apologizing to victims and civil parties, and cooperating with both prosecutors and the judges in an attempt to ascertain the truth. Underlying the entire exercise was Roux’s central organizing principle of “rehumanizing” the accused, readmitting him into the human race after he had been cast out by virtue of his admittedly beastly behavior as chief of S-21. Roux had been frustrated that the co-prosecutors did not buy into his vision of the trial. From their perspective, though Duch did exhibit limited cooperation in numerous areas, he also had a tendency to deny anything that was not thoroughly documented by surviving materials from his own S-21 archive. Though he displayed a near photographic memory—he was able to rattle off eightdigit document identification numbers in three languages off the top of his head when referencing material from the case file in support of whatever point he might be making at a given time—when the topic turned to issues such as the extent to which he might have personally engaged in torture or executions, his memory suddenly became quite foggy. Thus the prosecution had reservations regarding the extent of his cooperation, the truthfulness of his statements, and the authenticity of his purported contrition.

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Despite the prosecution’s skepticism, Roux steadily built an elaborate edifice of confession, contrition, and remorse. In closing arguments for the defense, he and his national co-counsel Kar Savuth would presumably put all the pieces together to plead for mercy and a reduced sentence. On November 25, Kar Savuth took to the floor of the Trial Chamber to deliver his final pleadings. Shortly after he began speaking, he suddenly told the judges, “I would like to address the preliminary objections.”124 Savuth proceeded at length to develop the same argument he had outlined during his opening arguments. He defined “senior leaders” as being limited to members of the Communist Party of Kampuchea Standing Committee, and the “most responsible” as individuals who were indentified in a key March 30, 1976, Central Committee document as being authorized to order the execution of “enemies.”125 According to Savuth, there had been only fourteen such individuals, and Duch was not one of them. Consequently, Savuth told the judges, the defense was requesting “the termination of the criminal action” against his client.126 The effect of these words in and around the courtroom was electrifying, because it was instantly clear that what Savuth was saying was totally incompatible with the strategy that François Roux had been developing over the entire course of the trial. The next morning, Roux presented the second half of the defense closing, mildly noting at the outset that “we have had to review the entire plan of our pleadings after Mr. Kar Savuth’s pleadings yesterday afternoon.”127 After an emotional preamble in which he announced that this would be his last day as a practicing lawyer, Roux acknowledged the elephant in the room: “As you can well imagine, I shall not evade the question that was put to us yesterday during the pleadings of my esteemed colleague, Kar Savuth.”128 He had explained to his team, Roux continued, “that these are two contradictory things. We cannot, on the one hand, ask for the acquittal of the accused which would mean that he is not guilty, as well as enter a guilty plea.”129 But acknowledgment was as far as he would go, because in the end, evade the question he did. “The accused will not plead guilty,” he conceded, but then he went on to summarize his case for mitigation of the punishment. By the time he had finished, the civil party attorneys facing him were furious. The accused seeks “to ride two horses,” civil party counsel Karim Khan began.130 “At the last possible moment, as Mr. Roux said, yesterday things changed. They did indeed because in place of what was viewed as a guilty

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plea in material respects we heard that, in fact, the accused is seeking to be let free. He is complaining about the very fact of prosecution against him. Your Honour, there are two completely different positions being put forward by the defence that sit opposite. This is unfair.”131 Khan suggested that the defense was engaged in “abuse of process,”132 and then went on to deliver an eloquent, point-by-point rebuttal of Roux’s closing arguments. When their turn to address the court came, the other civil party attorneys were even more enraged. What Kar Suvuth had done the day before, Silke Studzinsky nearly shouted, was a “slap in the face of the civil parties and, I dare to say, all victims of the regime. . . . The time has come to shed the sheep’s clothing.”133 Martine Jacquin was perhaps more disappointed than angry: “I think, Mr. Duch, that you missed an appointment that you had with the history of your country.”134 Philippe Canonne lamented that the civil parties had hoped to hear from Duch words of sincerity and true contrition, but instead got only case numbers and document numbers: “This is most troubling because perhaps this gentleman has not understood a single thing.”135 Finally, national civil party attorney Hong Kimsuon concluded the civil party rebuttals with a highly emotional pleading. “It is very heartbreaking to hear what has already been put by the defence. Those who have never gone through the Khmer Rouge regime would never, ever experience such tremendous pain.”136 They were all exhausted and nearly in shock from the turn of events. Friday, November 27, 2009, dawned as the final day of the Duch trial. Deputy International Co-Prosecutor Bill Smith began the prosecution’s rebuttal by drawing the attention of the bench to the fact that the defense was simultaneously asking for an acquittal and pleading for mitigation in the event of a conviction. Unless Duch had instructed his counsel to seek an acquittal, “that’s improper conduct,” Smith argued.137 “This needs to be resolved before we leave the courtroom,” he insisted.138 He asked that the judges directly inquire of the accused as to how he had instructed his cocounsel. As Smith prepared to give the floor to National Co-Prosecutor Chea Leang, civil party attorney Karim Khan intervened, reiterating the suggestion that the bench query Duch as to his instructions to counsel.139 Instead, President Nil Nonn gave the floor to Chea Leang, who proceeded to rebut several elements of the defense closing before returning the floor to Smith to deliver his final pleadings for a guilty verdict and a sentence of forty years.

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Turning the floor over to the defense for their final rebuttal, President Nil Nonn noted that the chamber expected the defense to clarify its “inconsistent” statements. Kar Savuth responded by reiterating the points he had made in his closing, and without touching upon the contradiction between his position and that of his co-counsel, concluded by imploring the judges to “release my client and allow him to go home.”140 François Roux then took the floor, first telling the judges that he would “shed light on the questions put by the Chamber and the questions put by my learned colleagues on the other side.”141 Roux went on to deny that the defense had built any “strategy.” And then, once again, he devoted his remarks entirely to pleading mitigation, insisting “that the accused must benefit from mitigating circumstances.”142 Deputy Co-Prosecutor Smith was instantly on his feet when Roux finished. “The defense have evaded your question in relation to why this change of plea,” he pointed out to the judges.143 He insisted that the judges ask Duch himself to resolve the contradiction. Roux responded by declaring that the word “acquittal” had not been used this morning, and that if Duch were to be found guilty, “he should be freed as soon as possible.”144 After a brief deliberation among the judges, President Nonn addressed the accused, suggesting that they had asked the defense to “clarify its position,” but that “the question seems to be not well answered yet.”145 Duch then spoke at some length, emphasizing his cooperation, his apologies, and his admission of guilt, saying plainly that he was “responsible for the crimes without any denial.”146 Grasping desperately at some invisible thread of hope, he concluded by saying, “So I would ask the Chamber to release me.”147 Nil Nonn pressed him for a reason: “The question now is what made you ask for the release?”148 Duch deferred to his national co-counsel, Kar Savuth. Savuth once again repeated his jurisdictional argument, concluding that Duch was neither a senior leader nor most responsible for the crimes. At this juncture, Judge Silvia Cartwright intervened to ask Savuth, “Do I infer from your last comments that the accused is seeking an acquittal?”149 Kar Savuth replied, “I did say that because to release means acquittal.”150 Duch’s fate had been sealed. On July 26, 2010, the Trial Chamber delivered its judgment.151 Duch was found to be responsible for a wide variety of crimes through a joint criminal enterprise, including murder, extermination, enslavement, imprisonment, torture, persecution on political grounds, and other inhumane acts,

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as crimes against humanity. He was also found guilty of willful killing, torture and inhumane treatment, willfully causing great suffering or serious injury to body or health, willfully depriving a prisoner of war or civilian of the rights of a fair and regular trial, and unlawful confinement of a civilian, as grave breaches of the Geneva Conventions of 1949. In addition, he was found responsible for these crimes by virtue of planning, instigating, ordering, and aiding and abetting the crimes. He was sentenced to thirty years in prison, with a five-year reduction granted as a remedy for his illegal detention by the Phnom Penh Military Court between 1999 and 2007. He was further entitled to credit for time served, from his arrest on May 10, 1999, until his judgment became final. Following the first instance trial, the prosecution, the defense, and the civil parties all appealed the verdict. The final judgment by the Supreme Chamber largely upheld the Trial Chamber’s findings of facts and law but dramatically altered the terms of Duch’s sentencing. The Supreme Chamber agreed unanimously that Duch’s rights had been violated by the military court,152 but found—with Judges Klonowiecka-Milart and Jayasinghe dissenting—that the Trial Chamber had misinterpreted jurisprudence on when it is appropriate for an international court to grant a remedy for an injury inflicted by a national court.153 The majority determined that a sentence of life in prison was a fitting punishment given the gravity of Duch’s crimes and the limited mitigating factors. JUDICIAL INVESTIGATIONS CONTINUE

As the Duch trial unfolded in the courtroom, the co-investigating judges continued their investigation of Case 002. There were four accused: Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith. This was far more challenging than the Case 001 investigation. For one thing, the crime scene was essentially an entire country, as opposed to one large prison compound. And for another, the accused in 002 remained by and large mute. The first instructions from any good lawyer to his or her client generally are, “Do not talk to the police—if they want to talk about something, let them talk to me about it.” Except for Khieu Samphan, who seemed to have convinced himself that he was genuinely innocent and therefore had nothing to fear from talking to the investigating judges, the others said very little. That meant investigators focused primarily on the documentary record, as well

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as surviving witnesses who could be tracked down and questioned. Meanwhile, the legal teams in the Office of Co-Prosecutors and the Office of CoInvestigating Judges had to contend with a huge amount of litigation. Lawyers spend a lot of time arguing. Indeed, it seems that is their principal occupation. During the judicial investigation of Case 002, a truly withering volume of arguments was put forward by the legal teams representing the various parties—with the lion’s share coming from the defense teams. They argued about pretrial detention and conditions of detention. They argued about the disqualification of judges and the disqualification of investigators and legal advisors. They argued over translation issues, restitution of seized items, allegations of witness intimidation, and requests for the disclosure of information. There were arguments over investigative requests from the parties to the co-investigating judges. There were arguments over personal jurisdiction, subject matter jurisdiction, and modes of liability. They argued over amicus curiae, the admissibility of documents, torture-tainted evidence, confidentiality and transparency, expert consultants, alleged corruption in the court, and alleged political interference in the administration of justice. They argued over medical testing of accused persons, the summoning of witnesses, requests to annul investigative acts, the admissibility of civil party applications, allegations of abuse of process, and the Closing Order. They argued about many, many other things as well. It wasn’t just one argument on each of these topics. For example, there were twenty-six investigative requests from Nuon Chea’s legal team, more than a dozen from Ieng Sary’s legal team, and more than forty from the coprosecutors. Moreover, many of these were not simply a one-off request from the party to the co-investigating judges but rather extended exchanges between the requesting party and the judges, sometimes with other parties joining in, and ultimately involving appeals to the Pre-Trial Chamber. All of this argumentation generated a veritable tsunami of legal briefs. More to the point, it also consumed a great deal of time—which, on the part of the co-prosecutors and co-investigating judges, might otherwise have been used to actually carry out investigations and preparations for trial. While legal teams in the Office of Co-Investigating Judges (OCIJ) dealt with challenges from the defense as well as investigative requests from the prosecution, OCIJ investigators focused on probing the allegations in the Introductory Submission. The co-prosecutors had identified twenty-eight separate crime sites to be investigated, where they alleged that the accused

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were responsible for a wide range of crimes, including three distinct rounds of forced population transfer, forced labor, inhumane living conditions, unlawful detention, killing, torture, physical and mental abuse, and persecution of Vietnamese, Chams, and Buddhists, among other crimes. The investigative effort put forth by OCIJ in response was enormous. The office conducted forty-six interviews with the accused and more than a thousand interviews with other individuals. On top of that, investigators also had testimonies submitted by nearly four thousand civil party applicants along with more than four thousand additional complainants. Investigators completed thirty-six site identification reports and commissioned a detailed demographic report. They examined and added to the case file more than 11,600 documents. In total, the judicial investigation expanded the case file by more than 350,000 pages of material, beyond what had been placed in the case file by the co-prosecutors during the preliminary investigation.154 The process of tracing the allegations through witnesses was challenging. Some witnesses interviewed had nothing useful to offer investigators, whether because they really didn’t know anything pertinent to the investigation, because they had forgotten over the intervening decades, or because they decided for one reason or another that it was best to remain discreet. Other witness interviews might yield only a single relevant factoid, nothing revealing until combined with other factoids to form a pattern. Still other witnesses offered very rich and detailed narratives about what happened at a particular location, during a particular episode, or indeed across a range of times and places. Many of the witnesses had been Khmer Rouge cadres working at various echelons in the regime, and a surprising number decided that they would cooperate with investigators in attempting to get to the truth of the matter. Gradually, investigators wove together an elaborate tapestry of what had happened during the era that Cambodians refer to as “the Pol Pot time.”155 Analyzing the huge mass of documents left behind by the Khmer Rouge regime was perhaps an even bigger challenge than dealing with the witnesses. For one thing, the Khmer Rouge used the Khmer language in new and different ways, redefining some words, banning others, and creating a variety of neologisms in an effort to express their unique take on communist ideology. For example, they combined the words santesok (security) and norkorbal (police) in a contraction to form santebal, or “security police.” Another example is their repurposing of the Khmer word for “absolute,”

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which came to mean a militant and uncompromising zeal for implementing the party “line,” or policies, whether the discovery and “smashing” of enemies or the three-ton-per-hectare rice production target. Much of this new lingo was incomprehensible to those who had not been initiated into the cult of the Khmer Rouge, and it posed no less of a challenge for investigators attempting to decipher Khmer Rouge documents years later. Fortunately, however, the KRT retained the services of several exceptionally capable linguists, along with a number of former Khmer Rouge cadres, who were able to develop an extensive glossary of terms to assist the teams of translators tasked with rendering fantastic volumes of documents into English and French. The many types of documents surviving from the Khmer Rouge regime were a boon to investigators. In addition to the wealth of materials left behind at S-21—prisoner lists, execution logs, notes from staff training sessions, and of course the ubiquitous confessions—there were also many other types of revealing documents. Many telegrams sent between the party center and zone or sector commanders have been recovered, and these revealed both the details of policy directives from the center as well as reports on progress in implementing those directives from the periphery. Minutes of meetings of the Standing Committee lifted the veil on how the regime’s policies were formulated. Minutes from meetings of the Revolutionary Army of Kampuchea’s General Staff show how the Khmer Rouge leadership used their military to enforce their policies, carry out purges, and deeply purge the military itself. The Standing Committee’s secretariat was known as “Office 870,” and it left behind masses of documents that made it possible to reconstruct the regime’s economic and trade policies. One of the most revealing sets of documents, however, were the regime’s two principal policy journals, known as Revolutionary Flag and Revolutionary Youth. These monthly publications were the primary means through which the regime’s policies were communicated and explained to the rankand-file members of the party. Revolutionary Flag, in particular, provided a running commentary through the course of the entire regime of Khmer Rouge objectives, strategies, tactics, and perceived successes and vulnerabilities. These documents did much to make the case against the Khmer Rouge leaders inescapable. Another project undertaken by the co-investigating judges attempted to sort out how many people had died during the Khmer Rouge regime, and

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from what causes. For this task, the judges retained the services of two demographers, international Ewa Tabeau, who was the chief demographer in the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and Cambodian They Kheam, the director of the Department of Demographic Statistics, Census and Surveys in Phnom Penh. These investigators carried out a detailed comparative assessment of twelve major “sources” on the Khmer Rouge death toll, mostly internationally published research studies on Cambodia’s demographics in the 1970s.156 The demographers analyzed the sources, methodology, transparency, assumptions, and reproducibility for each study. They concluded that two of the studies were the most robust157 and determined that the Khmer Rouge death toll most likely fell somewhere between 1.747 and 2.2 million excess deaths.158 RUPTURE: THE NEXT GENERATION

On December 19, 2007, Nuon Chea’s defense lawyers, Son Arun and Michiel Pestman, filed a request with the Pre-Trial Chamber (PTC) under Rule 34—the rule concerning the recusal and disqualification of judges—for each sitting member of the PTC to submit to the defense their “(i) university degrees or equivalent qualifications; (ii) current and previous employment; (iii) current and previous political affiliations; (iv) current and previous activities in civil, public, and international affairs; (v) familial, professional, and/or financial ties to any officials of the Royal Government of Cambodia; and (vi) any other information which may objectively give rise to the appearance of bias.”159 This was certainly a bold maneuver, thinking outside of the box. It was also, of course, an excellent way to alienate all the judges who would soon be hearing your bail appeal, not to mention other motions and appeals. The general sense at the time was that this represented the opening move of what would become a scorched-earth campaign at the ECCC. If you can’t beat them on the law and you can’t beat them on the facts, why not try burning down the courthouse? If the court becomes paralyzed with accusations of professional incompetence and lack of qualifications, then maybe the donors will decide not to continue funding the whole sorry mess. And perhaps the government will get so annoyed with attacks on ruling party cadres that they will decide the project is not worth the trouble, and pull the plug on the court. It was, in other words, the strategy of rupture.

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Pre-Trial Chamber President Prak Kimsan deftly batted away the defense team’s effort with a note pointing out that there was no provision for such a request in the Internal Rules, Cambodian law, or international practice.160 But it was only the beginning. A month later, the Nuon Chea team moved for the disqualification of Pre-Trial Chamber Judge Ney Thol161 on three principal grounds of alleged bias: first, that he was a member of the Royal Cambodian Armed Forces; second, that he had been or was then a member of the Central Committee of the Cambodian People’s Party; and third, that he had been involved in several controversial political cases that resulted in convictions of opposition party politicians.162 This sort of brashness by defense lawyers was unknown within Cambodia’s legal culture, but the chamber responded with alacrity. The next day, the PTC set deadlines for filing; OCP was given forty-two hours to submit a response to the Nuon motion for disqualification, and the defense was given seven additional hours to respond to the prosecution filing.163 Rejecting the subsequent defense request for a public hearing and amicus curiae briefs, the chamber promptly issued a unanimous decision.164 It found that while the application was partly admissible, the applicant had failed to reach the threshold for demonstrating actual or perceived bias on the part of Ney Thol. Meanwhile, the application had also been signed by Nuon Chea co-lawyer Victor Koppe, who had not yet been admitted to the Bar Association of the Kingdom of Cambodia, and who therefore was not yet qualified to practice law in Cambodia. This led to a brief refusal by the bar association to admit Koppe and resulted in a postponement of Nuon’s PTC detention hearing on February 4.165 The entire episode put the court on notice that Nuon Chea’s legal team was fully prepared to play fast and loose with the law, and that they would be like nothing the Cambodian judges had ever encountered in a courtroom. Nuon Chea’s international defenders would go on for the better part of a decade pushing the boundaries of permissible legal practice at the KRT, attempting to drive wedges sufficiently deep into cleavages among the court, the court’s donors, and Cambodia’s ruling party so as to cause the KRT to come apart at the seams. Aside from regular calls for the disqualification of various officials of the court—a gambit also pursued by other legal teams in Case 002—the Nuon Chea team developed four other principal lines of attack in their rupture strategy. First, from late 2008 to early 2010, they picked up on reports of alleged corruption on the national side of the court

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initially publicized by the Open Society Justice Initiative and pressed them vigorously inside the court, at the United Nations, and most of all in public media. They argued that the corruption they alleged was occurring made it impossible for their client to receive a fair trial. Second, beginning in February 2009 and continuing into 2016, the Nuon team sought to compel the testimony of the top leadership of the Cambodian People’s Party at the tribunal. Third, from mid-2009 to early 2012, they developed a series of arguments concerning purported political interference by the Cambodian government in the administration of justice at the KRT, again arguing that such interference violated their client’s fair trial rights. Finally, from mid2012, the Nuon Chea team went blatantly political, publicly accusing the most senior leaders of the ruling Cambodia People’s Party—including Hun Sen, Chea Sim, and Heng Samrin—of having committed various crimes, up to and including genocide. The attack began with allegations of corruption within the court. On the face of it, this was a legitimate issue. In September 2008, the Nuon defense submitted a request to the KRT’s director and deputy director of administration for any information they might possess regarding this purported corruption. They also ensured that their request received widespread publicity through the media.166 Both the Cambodian and the international administrators of the court declined to provide any documentation to the defense team.167 Late the following month, the Nuon defense sent a letter to Deputy Prime Minister Sok An requesting that he disclose any reports or communications received from the UN relating to corruption at the court, as well as any other details on the subject in his possession. Once again, they demonstrated their preference for trying the case in the court of public opinion, rather than the court of law.168 On January 8, 2009, the international lawyers of the Nuon Chea defense team filed a complaint at the Phnom Penh Municipal Court, alleging that there was a conspiracy by the KRT’s director of administration to deprive their client of a fair trial through corrupt practices.169 Unsurprisingly, it did not take long for this development to make its way into the public domain. The next day, outraged national judges of the KRT issued a press release denouncing the “leak” to the media and news reports alleging that the judges were paying kickbacks to government officials.170 Complaining that the allegations in municipal court were “seriously affecting the honour and dignity of all individual judges,” they went on to “absolutely reject such an

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accusation.”171 “We reserve the right to legal recourse against any individuals who have provoked such a problem,” the press release concluded. Later that day, the Nuon team gave an interview to Radio Netherlands claiming that they felt “intimidated” by the press release from the judges, while flatly asserting that the judges and other court personnel “had to buy their appointments.”172 At the municipal court, officials quickly declared that they would investigate the allegations. Chief Judge Chev Keng accepted the complaint, naming former ECCC Chief of Personnel Keo Thyvuth as a second target alongside Director of Administration Sean Visoth.173 The case was assigned to the court’s deputy prosecutor, Sok Kalyan, who told reporters that it would be “very complicated,” and “hard to find evidence” of corruption.174 The municipal court’s chief prosecutor, Ouk Savuth, was about to be replaced by Yet Chakriya, who also happened to be the deputy national coprosecutor at the KRT.175 The first to be questioned in the case would be the plaintiffs themselves. Andrew Ianuzzi, a member of Nuon Chea’s defense team, told reporters, “We are looking forward to helping the court.”176 As for the two court personnel accused of malfeasance, Thyvuth had been transferred from the ECCC to the Council of Ministers the previous August, while Visoth had taken “medical leave” in November.177 On February 4, Andrew Ianuzzi of the Nuon Chea defense team met with the prosecutor of the municipal court to discuss the case. It did not go entirely as Ianuzzi might have hoped. “On Wednesday we have someone who has said they will investigate, and within 24 hours we get this letter saying they won’t,” said Ianuzzi.178 The defense lawyer claimed he had been told there were plans to interview “many other witnesses,”179 and consequently he suspected there was a “political motivation” behind the sudden turnabout.180 The municipal court’s Deputy Prosecutor Kaliyan had a very different take on the situation. He explained that the original complaint appeared to have been based on mere rumors that “there was corruption at the Khmer Rouge Tribunal, but there is no document to prove the nature of what is called corruption.”181 Ianuzzi vowed to appeal the decision.182 Beyond the Nuon team’s appeal, they also pursued multiple additional lines of attack on the corruption issue.183 Shortly after their rebuff by the municipal court, they wrote to the UN Secretary-General, requesting access to the report on the corruption question from the UN’s Office of Internal Oversight Services.184 The following month, they filed an investigative

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request with the Office of Co-Investigating Judges, asking them to investigate corruption in the court’s Office of Administration.185 That request was promptly rejected by the judges on the grounds that they did not have competence to investigate the court,186 and that rejection was just as promptly appealed by the Nuon Chea team to the Pre-Trial Chamber.187 The Pre-Trial Chamber eventually found that the appeal was inadmissible.188 While all of this was playing out, senior UN officials and the Cambodian government had been negotiating on a way to put the corruption issue to rest. In December 2008, the UN’s Assistant Secretary-General for Legal Affairs, Peter Taksoe-Jensen, and Deputy Prime Minister Sok An issued a joint communiqué announcing their agreement to hold a series of “joint sessions” with the aim of ensuring that the KRT administration “operates in a transparent, fair, and efficient way.”189 Six such joint sessions were held in January 2009. Taksoe-Jensen and Sok An met again on February 21, 2009, continuing to trade proposals on how to move forward on the issue,190 and then again in early April.191 This was followed by a spirited round of each side blaming the other for the lack of progress.192 April is the hottest month in Cambodia’s weather cycle, and it got very hot at the KRT in April 2009. Combined with the tug-of-war between the UN and the Cambodian government, all of the agitation by the Nuon Chea and other defense teams had the effect of increasing the temperature in and around the court. On April 1, one of the KRT’s defense lawyers told journalists that “they plan to bring up the corruption allegations during the trial in an effort to discredit the court.”193 During a detention hearing on April 2 before the Pre-Trial Chamber, Ieng Sary’s international defense attorney, Michael Karnavas, attempted to broach the topic of corruption, only to be quickly shut down by the judges.194 Karnavas referred to a leak from German parliamentarians, who were allegedly told by Deputy Director of Administration Knut Rosandhaug that his impugned erstwhile colleague, Sean Visoth, was “guilty of corruption.”195 In view of this, Karnavas argued, the court must investigate. The PTC judges insisted that the topic was beyond the scope of the day’s hearing. Andrew Ianuzzi of the Nuon Chea team was nonplussed, telling reporters, “I wouldn’t be surprised if the Cambodian judges were told to keep quiet and dodge the issue.”196 Government spokesman Khieu Kanharith acknowledged that Visoth had gone on sick leave because the UN’s investigation had named him and requested his removal. “Sick leave is a political excuse,” Kanharith admitted.197 But

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Kanharith insisted the government would not be swayed by pressure from the internationals. “If you say the court is corrupt, get out.”198 In this hothouse environment, Sean Visoth could not hold his tongue. “I can say this is a power struggle,” he told a journalist. “Who controls this court? This issue is what is causing this problem. All these elements are politically motivated,” he contended.199 In October 2009, the four defense teams in Case 002 decided to escalate in a coordinated rupture initiative. They launched a concerted strike on the Office of Co-Investigating Judges, seeking to have Marcel Lemonde disqualified and to have the judicial investigation annulled.200 First, Ieng Sary’s lawyers filed a motion for the disqualification of Judge Lemonde on the grounds that he had allegedly told his staff that he wanted them to collect only inculpatory evidence, as opposed to giving equal weight to inculpatory and exculpatory evidence.201 Accusing the judge of attempting to “game the process,” Michael Karnavas demanded that Lemonde be removed from the court.202 Finding that the evidence presented by the appellant was “not very strong,” the Pre-Trial Chamber dismissed the application.203 Karnavas also demanded the dismissal of the two international judges of the Pre-Trial Chamber, Rowan Downing and Katinka Lahuis, following public remarks by Prime Minister Hun Sen to the effect that he had evidence they had taken instructions from their governments.204 A special panel convened by the Pre-Trial Chamber found that the motion to take measures against Downing and Lahuis “inadmissible and unfounded.”205 Ieng Sary’s application to disqualify Judge Lemonde was almost immediately followed by a similar motion from Khieu Samphan’s legal team.206 The Samphan team essentially sought to join in the Ieng Sary application, while advancing additional reasons they asserted constituted “irrefutable proof” of bias on the part of Judge Lemonde.207 The Pre-Trial Chamber was not persuaded, finding that “the evidence supporting the application is not very strong.”208 Accordingly, the PTC decided that the appellant had failed to discharge the burden of proof and dismissed the application. The Nuon Chea team then wrote to the co-investigating judges, announcing that they lacked confidence in the judicial investigation of their client. Listing numerous reasons, they concluded that “your office has not conducted the investigation in an impartial manner,” and that should they not receive adequate reassurances on these issues within seven days, they would be forced “to take additional measures pursuant to Rule 34.”209 Rule 34

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pertains to disqualification of judges. The co-investigating judges responded twelve days later with a detailed refutation of the concerns outlined in the letter from Nuon Chea’s lawyers.210 In their response, they noted that Nuon Chea had leaked his application211 for the disqualification of Judge Lemonde to the media before it was filed with the court’s clerks. The Pre-Trial Chamber concluded that none of the submissions in the application “demonstrate a lack of impartiality on the part of Judge Lemonde,” and consequently the chamber dismissed the application.212 Finally, the Ieng Thirith team moved to have the proceedings stayed and the judicial investigation annulled on the grounds that OCIJ had abused the legal process in several ways. This gambit was rejected by the co-investigating judges,213 and in turn that rejection was appealed by Ieng Thirith to the Pre-Trial Chamber.214 It took the PTC some time to respond, but eight months later, it rejected the appeal, dismissing all grounds as lacking sufficient evidence.215 Collectively, this joint assault by the Case 002 defense teams on the Office of Co-Investigating Judges and the bench of the Pre-Trial Chamber was sufficient to divert substantial resources in multiple organs of the court for several months. OCP had to detail prosecutors to respond to the allegations in the several applications. Similarly, the international co-investigating judge had to devote considerable attention to defending himself against the allegations, as well as requisition legal staff to assist in his response. This consumed staff time and leadership attention that might otherwise have been devoted to investigations in both the OCP and the OCIJ. And of course, the Pre-Trial Chamber was faced with the disruption of recusals as well as the necessity of deciding on a welter of applications. All in all, it was a textbook illustration of the rupture strategy. Even if you fail to cause the judicial institution to implode, you can still burn through a lot of time and resources in the process. Moreover, the defense teams made sure that the issue remained on the front pages of newspapers, creating doubts about the integrity of the court among the public at large.216 Perhaps sensing they had gotten about as much mileage out of the corruption issue as they could, in mid-2009 the Nuon Chea team turned to a new issue: political interference by the Cambodian government in the administration of justice at the KRT. It began on June 3, 2009, with a set of letters from co-counsels Michiel Pestman and Victor Koppe to the coprosecutors and co-investigating judges, asking the two nationals if they

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had ever received instructions from their government, and the two internationals if they had any evidence that their national colleagues had ever received instructions from their government.217 International Co-Prosecutor Robert Petit later recalled that his response to the letter was to “ignore it. I’m not particularly impressed by this sort of alleged legal positioning.”218 Events would soon provide another opening to the Nuon Chea defense. In late February 2009, the team had filed an investigative request with the co-investigating judges, asking that the judges interview a number of senior Cambodian political personalities, including King Father Norodom Sihanouk, Prime Minister Hun Sen, ruling party president Chea Sim, ruling party honorary president Heng Samrin, and others.219 The investigative request was almost immediately leaked to a wide range of media outlets, purportedly via an unsigned email.220 In October, the international coinvestigating judge decided to execute the request and issued summonses to six senior ruling party officials, including both the president and the honorary president of the ruling party, and calling on them to provide testimony in the Case 002 judicial investigation.221 The government’s response was cool but firm. “The government’s position is no to this even if they are called as witnesses,” Minister of Information Khieu Kanharith announced, adding that if the foreign officials at the tribunal didn’t like it, “they can pack their clothes and return home.”222 Prime Minister Hun Sen pronounced the summonses as “strange.”223 He said he was puzzled that the senior CPP cadres should be summoned to testify at the behest of the defense, because their testimony would not redound to the benefit of the accused. “Therefore how will justice be done?” he asked.224 In the end, it would have to be done without testimony from any of the senior CPP officials. That was unfortunate. Although OCP investigators had examined the history of all six officials and determined that they did not qualify under either area of the court’s personal jurisdiction, all of them indeed had been low- to mid-level cadres during the Khmer Rouge regime and consequently might have had highly useful insights to provide to the court. The Nuon Chea defense followed up on these developments with a new motion, hoping to fan the embers into flames. And again, almost simultaneously with the filing of the motion, media organizations mysteriously received copies of the Nuon Chea legal brief.225 “If Hun Sen has indeed told witnesses that they do not have to cooperate, then he has committed a

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criminal offence and is seriously affecting the judicial investigation,” Nuon Chea defender Michiel Pestman declared to reporters.226 The new motion demanded that all those previously summoned be brought to the court to explain why they had not responded to the original summonses, and if there had been any influence from the government to prevent them from doing so. Most urgently, the international defense lawyers demanded, Hun Sen himself should be summoned and questioned.227 The prime minister reacted more sharply this time. “Again and again, I see they want to question (more people). Be careful, this is the issue of death,” Hun Sun warned in response to the defense motion.228 The Nuon defense team quickly turned his words against him, alleging in a follow-on filing that these remarks constituted “a direct, physical threat against potential witnesses” and consequently were potentially a violation of the court’s Internal Rule 35(1)(d).229 This round of rabble-rousing would not be so easily resolved. The filing provoked one of the most intense paper blizzards ever to strike the KRT. Lawyers and judges in four different organs of the court were producing legal briefs virtually nonstop for months in an attempt to wrestle to the ground the morass of issues loosed by this provocative rupture initiative.230 Shortly after the Nuon Chea filing, Ieng Sary’s defense team filed a similar request, essentially joining the action initiated by Nuon’s lawyers.231 The coinvestigating judges responded by informing the parties that while the national and international co-investigating judges disagreed on the necessity of conducting the requested interviews with the king and senior CPP cadres, nonetheless Judge Lemonde’s extensive efforts to do so had been fruitless, and so should the accused be indicted, the matter would be deferred to the Trial Chamber.232 Both defense teams appealed the OCIJ order, requesting that the PTC overturn the OCIJ decision and order the co-investigating judges to proceed with the requested interviews.233 The PTC ruled that the judges had misinterpreted Internal Rule 35 and should reconsider the request from the defense teams in light of the correct interpretation of the rule.234 Three days later, the co-investigating judges issued a reconsideration of the defense requests, affirming their original decision, rejecting the requests, and deciding to “leave it to the Pre-Trial Chamber” to “order such investigations . . . should it deem it necessary.”235 The Ieng Sary defense then requested that the Pre-Trial Chamber itself investigate whether certain senior CPP officials had interfered with the calling of the witnesses, sanction anyone who had done so, and then proceed to depose

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the witnesses that OCIJ had failed to interview.236 The Nuon Chea defense asked the PTC to vacate the OCIJ’s reconsidered order and direct the coinvestigating judges to carry out the originally requested interviews.237 At this point, the accumulated stresses on the system exceeded the carrying capacity of the structure, and the limits of the KRT’s design were revealed. The Pre-Trial Chamber split along the national-international seam, failing to achieve the majority necessary for a decision.238 Consequently, by default, the appeal and application were dismissed. In a separate opinion, international judges Rowan Downing and Catherine Marchi-Uhel wrote that although there was no basis in law for the co-investigating judges to “defer” investigations to the Pre-Trial Chamber, given the failure of OCIJ to act, the “grave nature of the allegations of interference” made it imperative for the PTC to intervene and investigate.239 They cited the “obligation to ensure that the integrity of the proceedings is preserved” and “the charged persons’ right to a fair trial” as the factors underpinning their opinion.240 In the separate opinion by the national judges of the PTC, Prak Kimsan, Ney Thol, and Huot Vuthy argued, somewhat tenuously, that when government spokesperson Khieu Kanharith stated that “the government’s position” was that the senior CPP officials “should not give testimony,” it was not an “absolute order” and “he did not assert that he expressed his opinion in the name of the Government.”241 Consequently, they concluded, they would uphold the second order from the co-investigating judges in deciding not to order further investigation.242 The defense wasted no time in publicly claiming that the PTC decision proved their original allegations. The decision “highlights how political the ECCC is,” asserted Ieng Sary defender Michael Karnavas.243 Michiel Pestman of the Nuon Chea defense team speculated as to “whether we’re going to have a trial in the usual Cambodian tradition where the government decides the outcome.”244 While the fracas over summoning witnesses was in its last few months of playing out, the defense teams rolled another metaphorical hand grenade down the aisle with an attempt to disqualify National Co-Investigating Judge You Bunleng. On June 17, the Nuon Chea team filed an application for Judge Bunleng’s disqualification, alleging that he lacked independence and that this breached Nuon Chea’s fair trial rights.245 A few days later, Ieng Thirith’s legal team filed a motion joining in the call for Bunleng’s disqualification.246 The Nuon Chea team soon followed up with a formal request for investigation to the Pre-Trial Chamber, asking the chamber to examine

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circumstances they alleged amounted to political interference in the administration of justice.247 They simultaneously filed a request for investigation with OCIJ, demanding that the international co-investigating judge investigate the national co-investigating judge on allegations that he lacked judicial independence.248 As usual, these filings instantly ended up in the hands of the media,249 which drew a warning from the Pre-Trial Chamber.250 In relatively short order, however, the PTC unanimously dismissed the disqualification bid, finding that the defense teams had failed to establish a factual basis for their allegations.251 Stymied on appeal, the Nuon Chea defense nonetheless forged ahead with accusations of political interference, taking their campaign to the international level. On November 11, 2010, the Nuon Chea defense wrote letters to Gabriela Carina Knaul de Albuquerque e Silva, the UN’s special rapporteur on the independence of judges and lawyers, and Surya Subedi, the special rapporteur for human rights in Cambodia, imploring them to conduct an investigation into political interference at the KRT by the Cambodian government. The letters were copied to Prime Minister Hun Sen, King Father Norodom Sihanouk, and UN Secretary-General Ban Ki-moon. Council of Ministers spokesman Phay Siphan denounced the letters as “an insult to the Royal Government of Cambodia and an insult to the United Nations.”252 The court rejected the very idea that an appeal to the UN experts was legitimate. “The Khmer Rouge tribunal is independent of the government, of the UN, of the special rapporteur,” tribunal spokesman Lars Olsen said. “The Khmer Rouge tribunal makes decisions based on the law and nothing else.”253 Subedi and Albuquerque e Silva had no comment.254 And there the matter came to rest, at least until Nuon Chea finally went to trial. At the initial hearings in Case 002, the Nuon Chea defense signaled clearly that their approach would be political. International defender Michiel Pestman flatly declared that the government had controlled the judicial investigation. “Why are we not allowed to tell this Court today,” he asked, “to explain to the people of Cambodia that the government has from the very beginning obstructed the investigation in the case against our client like they’re now doing in Cases 3 and 4?”255 He demanded that the court hear all 300+ witnesses the Nuon Chea defense had asked to call, conduct a thorough review of the judicial investigation, and carry out a broad-brush review of history as seen from the perspective of Nuon Chea. “Government should not tell Judges what to do. And there is strong evidence that that is

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exactly what happened in the investigation, the Judicial investigation against Nuon Chea.”256 Pestman then went further, conflating the Cambodian government with the government of Vietnam by suggesting that the entire trial was being orchestrated by the Vietnamese. “As you know, in 1997 [sic] Pol Pot and Ieng Sary, they were convicted for genocide after a trial completely orchestrated and controlled by the Vietnamese. Since 1979, very little seems to have changed.”257 The president of the Trial Chamber was not amused. “The Chamber will not allow such interruption again,” Judge Nil Nonn admonished.258 That certainly remained to be seen. The international members of Nuon Chea’s legal team were not even close to being done with their mischief. As he flatly declared in his remarks planned for the opening of the trial, Nuon Chea defender Michiel Pestman intended to play “The Jester” to the court in the course of the proceedings.259 “I think this court needs a jester. . . . The role of court jester is, of course, an ambiguous one. With his presence the jester also legitimizes and eventually perpetuates the very system he ridicules. . . . I will not be the fig leaf of this court’s injustice. Everyday I wake up in the months and years to come, I will look in the mirror and ask myself this all important question: Has the Court Jester run out of jokes?”260 The reason, according to Pestman, was that the legal team had concluded there was no possibility their client would receive a fair trial. They were convinced, he said, that “the whole process was going to be decided by Hun Sen, not by the Trial Chamber.”261 At the same time, the Dutch lawyers leading the Nuon Chea defense were keen students of Jacques Vergès. Thus their strategic approach to the trial, according to Pestman, was “inspired by the rupture strategy.”262 Unlike some of the other legal defense teams at the KRT, who decided on a “technical, legal approach . . . we went for a political one.”263 Although Pestman insisted that the strategy they adopted “wasn’t pure rupture,” they would show that they had absorbed the lessons of the master and moved the technique into a new era of international criminal law. 002 GOES TO TRIAL

The co-prosecutors completed their Final Submission for Case 002 in August 2010 and filed it with the OCIJ.264 The co-investigating judges then promptly delivered their Closing Order, indicting all four charged persons and ordering them sent to trial.265 Twelve months later, in September 2011,

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after years of feverish preparations, the OCP was nearing completion of an elaborate plan for Cambodia’s trial of the century.266 The prosecution planned to present evidence at the trial in a sequence closely following the Closing Order. But with just weeks remaining before the trial was to begin, the Trial Chamber had not yet informed the parties how it intended to organize the proceedings. It was not even clear yet which defendants would be on trial. Concerned that the huge Case 002 could not be completed before the defendants expired from old age, the Trial Chamber finally ordered the case to be severed into multiple parts, each of which could presumably be heard more expeditiously than the entire case.267 The chamber ordered that the first so-called “mini-trial,” which would be known as Case 002/01, focus principally on the evacuation of Phnom Penh. The co-prosecutors appealed, fearing that there would never be a Case 002/02. They demanded that the issues to be heard in 002/01 should be expanded so that they were representative of the entire case against the senior leaders. In early February 2013, the Supreme Court Chamber (SCC) found in favor of the co-prosecutors.268 The SCC criticized the Trial Chamber for having failed to consult the parties prior to issuing its severance order, annulled the Trial Chamber’s severance order, and suggested that a second Trial Chamber should be established. Something about these findings by the SCC—perhaps the complex and undoubtedly costly proposition of establishing a new chamber—evidently enraged some key donors. Japanese diplomats, with representatives of one or two other donors in tow, almost immediately presented Sok An with a demarche: the SCC’s attempt to arrogate unto itself the authority to redesign the ECCC must be stopped, and trial hearings must proceed forthwith.269 Word of this minor donor revolt quickly filtered back to the judges of the SCC, who were not happy about this attempt by members of the Group of Interested States to interfere with judicial decision making at the KRT. International judges at the SCC complained to the secretary-general’s Special Expert, David Scheffer, demanding that he intervene to call off the hounds. Sok An, who had by this time weathered many accusations that the Cambodian government was interfering in the court, may well have found this episode amusing. For some time, court personnel had been observing unusual behavior by Ieng Thirith. For example, during a Pre-Trial Chamber hearing in 2009, Thirith warned the court that anyone who accused her of murder would be “cursed to the seventh circle of hell.”270 In the detention center, she would

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regularly shout things such as, “I didn’t do it! It wasn’t me! It was Nuon Chea, he’s the one!”271 She would also scream that Chea was a “mass murderer” and a “monster,” or hurl invective at the guards.272 She had also been known to bang on the door of Nuon Chea’s cell when she walked past it. In order to calm the prisoner, eventually the court’s medical staff decided to medicate Thirith with a daily cocktail of three different tranquilizers, along with a potent antipsychotic drug.273 Thirith’s legal team informed the court that their client’s mental health condition was such that they were unable to take instructions from her.274 The Trial Chamber ordered extensive physical and mental testing to determine if she was fit to stand trial, and ordered similar measures for Nuon Chea. But the Trial Chamber was slow to release the results of those examinations. Finally, on the evening of November 17, 2011, with only one working day remaining before the trial was to begin, the Trial Chamber issued a press release announcing they had found Thirith unfit to stand trial, and that they were severing her from the case and ordering her to be released. The prosecution learned of this development from journalists who called them asking for comment.275 Formal notification of the decision arrived the next morning, giving the co-prosecutors less than six hours to decide on a response and to draft, translate, and file an appeal. The prosecution asked the Supreme Chamber to stay the Trial Chamber’s order for Thirith to be released,276 and to order that under medical supervision, she be weaned off of the tranquilizers and antipsychotic medications, to see if her condition would improve.277 The Supreme Chamber granted the co-prosecutors’ appeal and ordered the Trial Chamber to continue Thirith’s detention while arranging for a six-month course of treatment that would attempt to improve her fitness for trial.278 In the end, however, her condition did not improve adequately, and the Supreme Chamber ordered her release in September  2012.279 Three years later, Ieng Thirith died, surrounded by her family, in Pailin, Cambodia.280 She had escaped the legal process with her impunity intact. Meanwhile, as the trial itself approached, the Nuon Chea team engaged in a practice known in military parlance as “shaping the battle space.” On October 24, 2011, the Nuon Chea team’s international defense lawyers filed a lawsuit in Cambodia’s Municipal Court, alleging that Hun Sen, Chea Sim, Heng Samrin, Hor Nam Hong, Keat Chhon, Khieu Kanharith, and several other senior leaders of the Cambodian People’s Party had unlawfully

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committed political interference with the administration of justice at the KRT.281 Adopting a prosecutorial bent and echoing the language ECCC prosecutors levied against their own client, the attorneys said that the CPP leaders had engaged in a “common criminal plan” to block certain witnesses from being heard at the KRT and to prevent certain cases from coming before the court.282 The government responded with mirth. “This is a joke,” Deputy Prime Minister Hor Nam Hong told reporters, “that we don’t need to reply back.”283 The Nuon Chea team then requested that the KRT Trial Chamber delay the proceedings in Case 002/01 until the municipal court case was resolved, but the chamber rejected the request.284 It was one last effort to either provoke the government into pulling the plug on the court or, failing that, delay the beginning of trial proceedings. The effort failed.285 The Case 002/01 trial began on November 21, 2011, with opening arguments by the prosecution. When it came time for the Nuon Chea defense to deliver their opening arguments, it appeared that they were not prepared. Michiel Pestman initially asked the judges for permission to postpone his presentation until the next day, arguing that he needed time to discuss the prosecution’s presentation with his client.286 President Nil Nonn indicated that this request was a “big surprise” and reiterated that the schedule for the hearing provided that the opportunity for Nuon Chea and his defense lawyers to speak was now.287 Pestman had nothing to say, other than that he believed the Trial Chamber’s scheduling order was confusing and felt that it was unfair the chamber would not alter the trial schedule at his request.288 Had he been able to deliver his remarks in court that day, the judges and the public would have been treated to an attack on the leadership of Cambodia’s ruling party—Hun Sen, Chea Sim, and Heng Samrin—of whom Pestman wrote, “They all carry their share of responsibility for the Khmer Rouge years.”289 Regarding the principal topic of the 002/01 trial, the evacuation of Phnom Penh, Pestman (falsely) wrote, “They were all there and played an important role.”290 Though his attorneys were apparently unprepared for the beginning of the trial, Nuon Chea was ready to explain himself to the court and to the public. He spoke for a full hour, and stuck with the script that the Khmer Rouge had followed consistently since 1979, to wit, that genocide had indeed been committed in Cambodia, but the perpetrators were the Vietnamese. The Socialist Republic of Vietnam had followed a policy of “racial

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extermination,” he insisted.291 Moreover, he concluded, Vietnam continued up until the present day in its “ambition to occupy, annex, swallow Cambodia, and rid Cambodia of her race.”292 For those who had followed Khmer Rouge propaganda over the decades, it was a familiar litany. The very day opening arguments began, the Nuon team moved to disqualify Trial Chamber Judge Silvia Cartwright on grounds of ex parte communications with the international co-prosecutor and Office of Administration. They laid the groundwork for this maneuver with a letter sent several weeks previously to the Trial Chamber, the international coprosecutor, and the deputy director of administration (DDOA), asking for information about meetings among Judge Cartwright, International CoProsecutor Andrew Cayley, and DDOA Knut Rosandhaug.293 Rosandhaug replied with a memorandum explaining that the meetings were purely administrative in nature and concerned coordination with United Nations organs abroad.294 Whether the timing was intentional or merely coincidental, the Nuon Chea defense chose to respond with a demand for Cartwright’s disqualification on the first day of the trial.295 In a matter of days, defense attorneys for Ieng Sary followed up with a request that the situation be investigated with a view to sanctioning Judge Cartwright, demanding that she step down from the bench until the matter was resolved.296 The Trial Chamber very quickly swatted down the defense requests, which were “rejected as being devoid of merit.”297 That decision was promptly appealed by the Ieng Sary team,298 and the Supreme Court Chamber eventually dismissed the application on its merits.299 Thus the 002/01 trial got under way in a less than fully collegial fashion. Initially, Nuon Chea was motivated to explain himself to the judges, convinced that his actions had been righteous and that the court would understand if only he could relate the facts as he saw them. This led to some awkward moments that harmed his case. One thing that had puzzled prosecutors and investigators had been the number of witnesses who had described people being executed for breaking spoons. They could not make out if this was some kind of metaphor they did not grasp, caused by out-ofcontrol local cadres, or what.300 Having seen a Khmer Rouge film of metals manufacturing, however, they also knew that ignorant child cadres had been in charge of casting cutlery, and they were making it out of pewter and other indiscriminate alloys created by melting down random pieces of metal. Thus spoons and other utensils could be highly brittle. Early in the

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trial, Nuon Chea inadvertently resolved this mystery as he attempted to explain why some people were simply beyond the pale and had to be eliminated. “There were still bad elements in some of the cooperatives,” Nuon told the judges. “They intended to destroy the cooperatives. For example, they destroyed those—the utensils, for example the pots, the spoons, they destroyed them—they threw them away at the Tonle Sap. And as a result in some cooperatives, there were shortages of those cutleries.”301 The phenomenon of executing villagers for breaking spoons was in fact a formal policy handed down from the top, and Nuon Chea not only was aware of it, he was evidently the author of that policy. These kinds of revelations from the accused person in court are unlikely to have assisted him in persuading the judges that he was innocent. At the end of 2012, Michiel Pestman was replaced as Nuon Chea’s lead international defense counsel by his law partner, Victor Koppe, as they had long planned. Koppe’s style was more sober and less theatrical than Pestman’s, though no less political. During closing arguments in Case 002/01, for example, Koppe asserted that if his client was guilty, then CPP ruling party leaders Hun Sen, Chea Sim, and Heng Samrin were also guilty.302 A few months later, in February 2014, Koppe told journalists that the senior leaders of the Cambodian People’s Party feared that the KRT might indict them: “There are strong indications that they probably feel it is getting close to themselves.”303 Koppe proceeded from there to accusations that Cambodia’s leaders were directly responsible for some of the crimes with which his client had been charged. During questioning of a witness in the Case 002/02 trial hearings, Koppe attempted to reference a Human Rights Watch report that had previously been rejected by the Trial Chamber. According to Koppe, the document contained “evidence which might incriminate present government members as the perpetrators of the actual genocides.”304 In response to objections from the prosecution, he retorted, “We’re talking about atrocities being committed by East Zone forces including possibly the prime minister of this country.”305 At times it seemed as if Victor Koppe had lost track of who was on trial at the Khmer Rouge Tribunal. But in fact, this was a classic tactic of the rupture strategy: accuse the rulers of the same crimes for which your client is being tried. The legal team defending Ieng Sary adopted a distinctly different approach. International defense co-counsel Michael Karnavas recalls that

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Ieng Sary specifically instructed his defense lawyers not to attack the Royal Government, the ruling party, or the prime minister. Sary “wanted his defense to behave in a dignified fashion in court. He did not agree with how the Nuon Chea team is behaving.”306 But this did not mean the Ieng Sary team was idle—far from it. During the course of the proceedings, Ieng Sary’s attorneys filed “over 500 applications” challenging every conceivable aspect of the law and facts that were being arrayed against their client.307 They challenged the qualifications and impartiality of the co-prosecutors, the coinvestigating judges, and their staffs. They challenged the integrity of judges of the Pre-Trial and Trial Chambers. They challenged the jurisdiction of the court over their client and the applicability of the various laws he had been accused of violating. They challenged the admissibility of various types of evidence, and whether various witnesses were appropriate or qualified. They challenged an astonishing array of issues. But the Ieng Sary defense team pursued one particular issue with extraordinary zeal. As described above in chapter 2, Ieng Sary was tried and convicted of genocide in 1979,308 and he was subsequently pardoned by King Norodom Sihanouk in 1996.309 The question was whether or not Ieng Sary should be held harmless from prosecution before the Khmer Rouge Tribunal under the principle of ne bis in idem, or in common law terms, double jeopardy. This issue arose repeatedly across the course of the proceedings. It was initially litigated pursuant to the order by the co-investigating judges that Ieng Sary should be held in provisional detention during the judicial investigation.310 Ieng Sary appealed this order to the Pre-Trial Chamber, which in turn found that ne bis in idem was no bar to his prosecution at that stage of the proceedings.311 The issue was brought before the Pre-Trial Chamber once again in Ieng Sary’s appeal of the Closing Order in Case 002.312 That chamber found that the 1979 People’s Revolutionary Tribunal was not an “impartial and independent tribunal with regard to due process requirements” and so consequently ne bis in idem would not bar the prosecution of Ieng Sary by the KRT.313 But his defense team was not deterred. Before the Trial Chamber, they immediately raised the issue as a preliminary objection at the outset of the trial.314 The Trial Chamber found that it generally concurred with the findings of the Pre-Trial Chamber on the matter, further declaring that granting Ieng Sary relief under ne bis would amount to a de facto amnesty.315 In turn, Ieng Sary appealed the Trial Chamber finding on ne bis in idem to the Supreme Chamber,316 and that

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chamber delivered a split opinion.317 The majority found that the ne bis question was not ripe for decision, rejecting the appeal as inadmissible. In view of the fact that there is “no general right to interlocutory appeal,” the Supreme Chamber majority concluded, the appellant should await a verdict from the Trial Chamber.318 Judges Klonowiecka-Milart and Jayasinghe dissented, arguing that failure to rule on the substantive matter at issue constituted an “extreme” prejudice to the accused.319 Should it be found after conviction in the first instance that the court in fact had no jurisdiction over Ieng Sary, then he would have been held in violation of his rights for years, and the court would have wasted massive amounts of resources on an improper prosecution. But that was it. Following this veritable tidal wave of litigation, that was where the matter came to rest. Ieng Sary’s international defense attorney was philosophical about the prospects for an actual victory in any of these many hard-fought applications. Michael Karnavas explained, I never expected, for instance, that somehow the government, or the ECCC, will say that, yes, he was granted amnesty, and he has already been tried once, so we are going to cut him loose. Did I ever believe, in my heart of hearts, that we would ever win that? The answer is no. . . . I don’t think we ever had much of a chance, but we had to argue it anyway. You can’t just pass it up. It’s not for me to make the decision . . . if this is a winnable motion. If it can be done, then it should be done, end of story. I can’t make the determination, well, the judges are going to rule against it, so let’s not do anything.320

When Ieng Sary died on March 14, 2013, the Supreme Chamber was still seized by at least two motions from his legal team, both concerning fair trial rights. Both were extinguished with the death of the accused person. “It would have been interesting and fascinating to see what would have come of it,” Karnavas noted, “I had heard that they were about ready to issue some, and I had even heard that they were positive in nature, but at least from a jurisprudence point of view, it would have been very interesting.”321 In the course of the trial proceedings, Khieu Samphan’s legal team adopted a more restrained, traditional legal approach than Nuon Chea’s lawyers, more akin to the strategy of Ieng Sary’s defenders. Most of the applications the Samphan team filed during the course of the proceedings were garden-variety legal motions, such as preliminary objections, requests

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to file evidence or hear witnesses, objections to evidence and witnesses, positions on jurisdictional issues, requests for immediate release or stay of proceedings, requests regarding translations and transcriptions, and the like. Asserting that the Trial Chamber had seriously violated their “client’s fundamental rights,” Khieu Samphan’s defense team announced at the end of evidence that their client would refuse to answer any questions put to him by the bench or other parties, and that he would restrict himself to making a statement at the conclusion of the proceedings.322 In their closing arguments, his defense team limited themselves to insisting that Khieu Samphan could not have influenced decisions on any of the alleged crimes at issue owing to the fact that he had no authority, and in other cases was not even present when the decisions were made. They added that the modes of liability under which the prosecution proposed that their client be found responsible in fact did not apply.323 And then they turned the floor over to their client. Khieu Samphan was even briefer than his defense attorneys. Insisting that he never had a position of authority in the revolution and that he never even witnessed any of the crimes with which he had been charged, he nonetheless indirectly admitted there had been serious problems during the Khmer Rouge regime. “Do you really think that that was what I wanted to happen to my people?” he asked the judges.324 In any case, he despaired that he had or could have received a fair hearing from the court, and rather pathetically concluded, “I am of the view that if I remain silent I can maintain my honour and dignity and I will leave it entirely to you wise Judges to adjudicate on my case.”325 In his closing argument at the Case 002/01 proceedings, Nuon Chea defender Victor Koppe asserted that the trial was not fair because of “the government’s pervasive control over these proceedings.”326 The real reason for the problems in the Khmer Rouge regime was “treason,” Koppe told the judges, “backed by the Vietnamese and supported by the first, second and third-ranking members of the present Cambodian government.”327 There was “also something more insidious at work, a conscious effort” to deflect blame from “the senior leaders of the Cambodian People’s Party.”328 In addition to the current Cambodian government, Nuon Chea’s defense team also seemed keen to cast blame upon the United States. “For the Americans and their allies, punishing the Cambodian Communists vindicates the fundamental justice of the last half century of their foreign policy.”329

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During his closing remarks, Nuon Chea himself returned to the argument that the Khmer Rouge had been advancing for decades: the root of the problem was the evil Vietnamese. The starvation and the killings during the Khmer Rouge regime were really “acts committed by Vietnam.”330 Far from starvation, Nuon Chea told the court, the goal of the Khmer Rouge leaders was “four meals per day” with dessert provided “every day from 1979 onwards.”331 International defender Victor Koppe then brought the defense team’s arguments to a close. By turns lawyerly, Koppe argued that the prosecution’s allegation that the Khmer Rouge regime was a “slave state” was grounded “in witness statements and evidence that are outside the scope of Case 002/01.”332 He argued that because the Trial Chamber did not compel ruling party Honorary President Heng Samrin to testify, “our client’s fair trial rights have been irreparably harmed.”333 In the end, Koppe concluded, “this trial is fundamentally political.”334 It seemed that there was little left for Nuon’s codefendant to say. Khieu Samphan appeared close to tears in his final comments to the chamber, insisting that he saw nothing, heard nothing, and could do nothing to stop the tragedy that befell Cambodia, lamenting that “nobody wants to listen to me.”335 At the conclusion of the final day of the trial, President Nil Nonn informed the parties that there had been 222 days of trial hearings, including 10 days of closing arguments.336 According to President Nonn, the chamber had heard testimony from 92 individuals, comprising 57 witnesses, 32 civil parties, three experts, two doctors, and two medical experts.337 The judges had been seized by more than 290 applications and had issued more than 250 written and oral decisions. They had examined more than 4,000 documents. The trial record was more than 166,500 pages long, in three languages.338 “The substantive hearing in Case 002/01,” Judge Nonn concluded, “is considered complete.”339 The chamber then adjourned to deliberate on the evidence, which would take nearly a year. On August  7, 2014, the Trial Chamber delivered its verdict in Case 002/01.340 The chamber found that crimes against humanity had been committed during the evacuation of Phnom Penh as well as during the second major round of forced movement in late 1975 through 1977. These crimes, according to the Trial Chamber, had constituted a widespread and systematic attack taking many forms, and this attack had victimized millions of people pursuant to the plans of the Communist Party of Kampuchea.

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Further, the Trial Chamber found the existence of a Joint Criminal Enterprise in which both Nuon Chea and Khieu Samphan were participants. Accordingly, the Trial Chamber found “the accused Nuon Chea guilty of the crimes against humanity of extermination, encompassing murder, political persecution, and other inhumane acts comprising forced transfer and enforced disappearances, and attacks against human dignity.”341 Nuon was found to be responsible for these crimes under a variety of modes of liability, including Joint Criminal Enterprise, ordering, instigating, aiding and abetting, and superior responsibility. For his part, Khieu Samphan was found guilty “of the crimes against humanity of extermination, encompassing murder, political persecution, and other inhumane acts comprising forced transfer and enforced disappearances, and attacks against human dignity.”342 Khieu Samphan was found to be responsible for these crimes under a variety of modes of liability, including Joint Criminal Enterprise, planning, instigating, and aiding and abetting. With the guilty verdicts, the very large group of civil parties in Case 002/01 became eligible for reparations. The civil parties in the KRT’s first trial were outraged that the Trial Chamber award of reparations in that case was limited to mentioning their names in the judgment and on the court website.343 Feeling that its hands were still tied but hoping to avoid angering an even larger group of civil parties in the second case, the Trial Chamber encouraged the court’s Victim Support Section and the civil party attorneys to seek outside funding for “collective and symbolic” reparations projects.344 The civil party attorneys responded by initially proposing seven separate projects under the categories of remembrance and memorialization, rehabilitation, and documentation and education.345 After further negotiations, including extended exchanges between the civil party lawyers and the Trial Chamber,346 the judges ultimately accepted eleven projects proposed by the civil parties.347 Those included a National Remembrance Day, construction of a memorial in Phnom Penh to honor the victims of forced evacuations, testimonial therapy, self-help groups, permanent exhibition spaces in five provinces, a mobile exhibition and education project, inclusion of a chapter on forced population movement and executions at Tuol Po Chrey within the Cambodian school curriculum, construction of a peace learning center in Battambang province, a booklet on facts adjudicated in Case 002/01 and civil party participation, two editions of the verdict in Case 002/01, and inclusion of civil party names on the ECCC

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website. Altogether, it was a unique approach to victim reparations in mass atrocity crime cases, providing a potential model for future courts facing similar challenges. All parties promptly appealed the judgment in Case 002/01, filing notice on September 29.348 The prosecution appealed on November 28,349 and both of the accused appealed on December 29.350 The prosecution’s appeal was narrowly focused on a single issue, whether or not the third or “extended” form of Joint Criminal Enterprise is a mode of liability applicable to the accused.351 In stark contrast to the parsimony of the prosecution, the Nuon Chea team’s appeal was expansive, citing 223 grounds of appeal.352 The Khieu Samphan team’s appeal was also extensive, covering 148 grounds of appeal.353 It also did not take long for the Supreme Chamber to make clear that it had some issues with the Trial Chamber verdict, as the appellate body soon scheduled hearings to take de novo witness testimony on key aspects of the judgment. In July 2015, at the behest of Nuon Chea, the chamber heard from three witnesses who offered testimony about events in the Southwest, West, and Northwest Zones of Democratic Kampuchea.354 On balance, those three witnesses did significant damage to the defense theory of the case. The Supreme Chamber then scheduled three days of oral argument in November to address the grounds of appeal put forward by the two defense teams.355 However, on the first day of the hearings, Nuon Chea lambasted the judges as biased and informed them that he had instructed his international and national defense counsel to boycott the proceedings.356 In response, President Kong Srim announced that the chamber would consider disciplinary action against the defense attorneys, instructed the Defense Support Section to appoint standby counsel, and adjourned the hearings.357 Hearings would not resume for another three months. The rupture strategy had arrived in the Supreme Court Chamber. In mid-February 2016, the Supreme Chamber finally heard oral arguments on the appeals, still without the participation of the Nuon Chea defense team. The Supreme Court Chamber had sanctioned Nuon Chea’s national lawyer, Son Arun, for misconduct, and he now appeared in court, though he remained silent. The chamber had also appointed standby counsel, due to the fact that Nuon Chea’s international defender was still boycotting the proceedings.358 The three days of hearings were otherwise unremarkable, with Khieu Samphan’s lawyers arguing that the trial had been

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unfair and the prosecution countering that the Trial Chamber’s verdict stood up to the criticisms from the defense teams.359 Then the judges of the Supreme Court Chamber retired to deliberate. The Supreme Court Chamber pronounced judgment in the appeals of Case 002/01 on November 23, 2016. The Supreme Court was not impressed with the work of the Trial Chamber.360 Nor were they impressed with the prosecution’s appeal, which was dismissed as inadmissible. The Supreme Court reversed the Trial Chamber’s convictions for the crime against humanity of extermination in the evacuation of Phnom Penh for both Nuon Chea and Khieu Samphan,361 and did the same for the second round of forced population movement,362 while also reversing the conviction for persecution on political grounds.363 Further, for the killings at Tuol Po Chrey, they reversed the convictions of both Nuon Chea and Khieu Samphan for the crimes against humanity of extermination, murder, and persecution on political grounds, finding that they were insufficiently supported by the evidence. This was a stunning repudiation both for the Trial Chamber and for the prosecution. However, the Supreme Chamber affirmed the convictions of both accused for the crimes against humanity of murder, persecution on political grounds, and other inhumane acts in the evacuation of Phnom Penh. They also affirmed the convictions of both for the crimes against humanity of other inhumane acts in the second round of forced movement, and, changing the legal characterization of the facts, added a conviction for the crime against humanity of murder. They concluded their judgment by affirming the sentence of life imprisonment that had been imposed on Nuon Chea and Khieu Samphan by the Trial Chamber. Case 002/01 had reached finality, and now the convicts knew their fate. But the court was not done with them yet. CASE 002/02

When the Trial Chamber completed closing arguments in Case 002/01 on October 31, 2013, President Nil Nonn concluded the hearing by announcing that the chamber would summon the parties on December 11–13 for a trial management meeting on Case 002/02.364 The original plan had been to discuss which charges from the indictment would be included within the scope of Case 002/02 and a schedule for the trial.365 However, the Supreme Court Chamber had in the meanwhile issued a ruling on the severance of

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Case 002 by the Trial Chamber, and had instructed that it was “imperative” to establish a second panel of the Trial Chamber to hear 002/02.366 This issue was now topic number 1. Discussion of the matter over two days among the bench, the parties, and the acting director and deputy director of administration was contentious and inconclusive,367 but the president of the Trial Chamber acted expeditiously in deciding one week later that the existing chamber would hear Case 002/02.368 Proceedings kicked off in February with an adversarial hearing to determine the scope of charges that would be heard.369 The Trial Chamber subsequently ordered that several elements of the remaining allegations in the indictment would be severed from the second trial.370 The crime sites and charges to be heard in 002/02 would include Tram Kak Cooperatives, the Kraing Ta Chan Security Office, the S-21 Security Office (including Choeung Ek), the 1st January Dam worksite, and the targeting of Khmer Republic officials at those four locations. It would also include forced marriage and rape on a nationwide basis, genocide against the Cham and the Vietnamese, the treatment of Buddhists, internal purges, the Trapeang Thma Dam worksite, the Kampong Chhnang Airport site, the Au Kansang Security Office, and the Phnom Kraol Security Office. These elements combined to form a substantial workload for the Trial Chamber in Case 002/02, one that the OCP estimated “would require two to three years to complete.”371 With the scope of the trial set, the Trial Chamber ruled that proceedings would move ahead promptly. The defense, however, had other ideas. Opening arguments on October 17, 2014, came to a screeching halt when both Nuon Chea and Khieu Samphan gave brief statements announcing that they had instructed their attorneys to boycott the proceedings, after which the defense teams staged a walkout.372 They also refused to attend a trial management meeting on October 21, called in an attempt to ascertain the precise nature of defense objections to the proceedings.373 After a formal warning from the Trial Chamber,374 the defense teams finally appeared at a second trial management meeting a week later, but insisted that they would continue their boycott, Nuon Chea’s team on the ground that the judges were improperly sitting while subject to a disqualification motion filed by the defense,375 and Khieu Samphan’s team on the ground that they had to focus on their appeal brief from Case 002/01.376 The Trial Chamber promptly dismissed these claims and ordered both teams to appear at a trial hearing scheduled for November 17, warning of “firm action” should they

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fail to comply.377 With the motions for disqualification of Trial Chamber judges having been rejected, Nuon Chea’s defense team returned to court.378 On the appointed day, however, Khieu Samphan’s attorneys continued their boycott.379 On November 24, there was a replay of the same script, and the Trial Chamber canceled all further hearings in Case 002/02 for the remainder of the year.380 The chamber also ordered formal sanctions against all three of Khieu Samphan’s defense attorneys381 and ordered the Defense Support Section to retain standby counsel in the event that those attorneys continued their boycott in the year to come.382 In the new year of 2015, as it happened, the defense teams returned and the Trial Chamber was finally able to begin hearing evidence in 002/02. The chamber chugged through that year and the next, hearing witnesses, experts, and civil parties one after another with few theatrics from the defense. Defense teams did briefly stage another walkout on August 26, 2015, protesting a motion by the prosecution to admit new documents from Cases 003 and 004 to the Case 002/02 proceedings.383 By and large, however, the judges of the Trial Chamber demonstrated that they had learned how to maintain order in their court and keep the proceedings moving. The single most time-consuming element of the 002/02 trial had to do with the charges of genocide. The Trial Chamber began hearing evidence regarding the alleged genocide against the Chams on September 7, 2015, moved on to the alleged genocide against the Vietnamese on October 27, and then, off and on, bounced back and forth between the two topics into March of the following year. Remarkably, the judges heard numerous midand low-level Khmer Rouge cadres testify candidly about their roles in the extermination of these two minority groups. A former commune chief from Kampong Cham province named Seng Kuy explained to the court that there was widespread killing of Chams in 1977 when “the Khmer Rouge purged the Cham people on a massive scale.”384 Several witnesses described how Cham people were rounded up and brought to the Wat Au Trakuon Security Office in Kampong Cham’s Kang Meas District for immediate execution, not subjected to the usual practice of extracting confessions through torture.385 Kampong Siem District Secretary Prak Yut was brutally frank: “The orders I received were very clear. They stated that we must kill all the Cham. I had no choice other than to carry out orders.”386 Other Cham people were bound together with ropes and dragged into the Mekong

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River to drown.387 The indictment estimated that more than a third of all Cham people in Cambodia perished. The allegations of genocide against the Vietnamese were tested through many witnesses and contemporaneous documents, and again, numerous former Khmer Rouge cadres described the regime’s policy on this issue in detail. Sann Lorn, the son-in-law of Southwest Zone Secretary and CPK Standing Committee Member Ta Mok, told the court how he helped round up nine thousand Vietnamese people in Takeo province’s Tram Kak District and deliver them to the Kraing Ta Chan Security Office.388 West Zone sector secretary Meas Voeun testified, “We were instructed that Vietnamese had to be smashed because they did not return to their country.”389 Pol Pot gave a speech in early 1978 declaring that “not one seed” of the Vietnamese remained in Cambodia, a comment that expert witness Alexander Hinton described as indicating the successful completion of the genocide.390 The prosecution submitted into evidence many internal Khmer Rouge documents demonstrating the same thing, such as the April 1976 issue of the party journal Revolutionary Flag, which asserted that as regarded the “danger” of ethnic Vietnamese people living in Cambodia, the revolution had “sorted this issue out permanently and completely.”391 Scholars believe that by the end of 1978, no ethnic Vietnamese Cambodians were left alive in the country. There was still a long way to go in the trial. After the long months of focus on genocide, nine more months of evidence remained to be presented on various other allegations in the complex case. Finally, on January 11, 2017, the Trial Chamber completed the hearing of evidence in Case 002/02. The parties retired to prepare for closing arguments, which came in June 2017. Lawyers representing the 3,867 civil parties392 in 002/02 spoke on the first day, giving voice to their clients and their suffering through quotes and videos.393 On day two of closing arguments, National Co-Prosecutor Chea Leang and National Deputy Co-Prosecutor Seng Bunkheang began the prosecution’s presentation with a overview of the evidence on the Tram Kak District cooperatives, the Trapeang Thma and 1st January Dam sites, the Kampong Chhnang Airport site, the arrests of Lon Nol soldiers, the persecution of Buddhists, and forced marriage and rape.394 International Deputy Co-Prosecutor Dale Lysak continued with a discussion of four security offices, Kraing Ta Chan, Au Kansang, Phnom Kraol, and S-21.395

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International Co-Prosecutor Nicolas Koumjian covered genocide against the Chams and the Vietnamese, recounting in detail the descriptions from Khmer Rouge cadres, victims, and other witnesses who testified before the Trial Chamber about the extermination of these two groups.396 National Co-Prosecutor Chea Leang completed the prosecution’s summation by asking the Trial Chamber to show “no leniency in sentencing” Nuon Chea and Khieu Samphan.397 In their oral closing arguments, Nuon Chea’s legal team outlined its claim that Vietnam was bent on dominating Cambodia, repeatedly attempting coups d’état by employing traitorous elements buried within the Communist Party of Kampuchea and the Revolutionary Army of Kampuchea, and when that failed, resorted to “Plan B,” outright invasion.398 The defense maintained that there were no arbitrary arrests and no “confessions,” any torture that might have occurred was the result of the unsanctioned excess of a misbehaving cadre, and everything that was done was done according to the law—though the counsel failed to reference the precise body of “law” to which he was referring.399 Finally, the documents introduced by the prosecution had no probative value,400 and most of the witnesses—indeed, all of the adverse ones—were not to be believed. All people in Cambodia, including Chams and Vietnamese, were treated equally. “There was no policy prohibiting religion or aiming to persecute Buddhists.” 401 It was a spectacular performance, but perhaps not entirely persuasive to anyone who had survived the Khmer Rouge regime, as a majority of the Trial Chamber judges had. International defense counsel Anta Guisse, representing Khieu Samphan, chose to begin her summation with a direct insult to the judges, asserting that this was “a trial where everything is decided in advance.” 402 The Khieu Samphan defense then presented a detailed argument holding that the prosecution was asking the chamber to rule on facts—such as the treatment of the Khmer Krom, rape outside of forced marriage, and genocide against the Vietnamese in places other than Svay Rieng and Prey Veng provinces—that were outside of the court’s jurisdiction in this case.403 Counsel Guisse also argued passionately that both co-prosecutors in their Case 002/02 arguments, as well as the Supreme Court Chamber in its Case 002/01 ruling, violated the principle of legality—which is to say, they were applying law that did not exist during the 1975–1979 period—imploring the judges of the Trial Chamber to remedy this defect. National defense

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counsel Kong Sam Onn argued that marriage and procreation policies during the Khmer Rouge regime were entirely consistent with traditional Cambodian practice. Anta Guisse completed her closing with arguments concerning Joint Criminal Enterprise and her client’s responsibility for the crimes. The civil parties and the prosecution now had a day to rebut the defense arguments. Speaking in rebuttal for the civil parties, International Lead CoLawyer Marie Guiraud suggested that “Whilst the aspiration of the Khieu Samphan defense is to recall the law, that of the Nuon Chea defense is to rewrite history.” 404 She attacked a handful of specific arguments made by both defense teams, then turned the floor over to her colleague, International Co-Prosecutor Nicolas Koumjian, giving the prosecution the bulk of their shared time. Co-Prosecutor Koumjian proceeded to refute many specific points the defense teams had made, suggested that they had distorted several specific pieces of evidence, outlined numerous contradictory claims Nuon Chea had made, called the defense out for the use of torture-tainted evidence as well as evidence not in the case file, and described how legal authorities cited by the defense as justification for killing prisoners in fact prohibited such actions.405 The next morning, the prosecution completed its rebuttal, with Koumjian systematically refuting defense claims that there were multiple coup attempts against the Khmer Rouge regime.406 International Deputy Co-Prosecutor Lysak then continued, beginning by suggesting that for the previous two days, “it felt like it was raining lies in this courtroom.” 407 Lysak observed that much of the evidence presented by Nuon Chea’s team was from anonymous sources not in the case file, and then refuted defense claims that documents upon which the prosecution relied had not been authenticated. He also detailed the evidence that had been presented regarding the four security offices in the case, and finally National Co-Prosecutor Chea Leang completed the prosecution’s rebuttal. She noted that the Supreme Court Chamber had overturned several of the convictions entered by the Trial Chamber in Case 002/01, putting the lie to the defense contention that the court had “a pre-determined outcome.” 408 Thanking all the witnesses and civil parties who sat for interviews or testified, she closed the prosecution’s case against Nuon Chea and Khieu Samphan. At the end, in his rebuttal, Nuon Chea’s international defense attorney, Victor Koppe, reiterated that his client believed “the trial against him is

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nothing but a show trial and that the ECCC is nothing but the product of victor’s justice, justice that only serves the interests of the American and Vietnamese aggressors.” 409 Nuon Chea himself declined to address the court. Khieu Samphan, in contrast, ended the proceedings with an impassioned plea, arguing that he and his colleagues in Democratic Kampuchea acted in the best interests of the Cambodian people, and that none of their actions was criminal, much less constituting genocide.410 President Nil Nonn then moved to close the Case 002/02 proceedings, noting that during 283 days of hearings stretching over nearly two and a half years, the Trial Chamber had heard testimony from 180 people, including 114 witnesses, 63 civil parties, and eight experts. The chamber accepted into evidence some 10,500 documents, totaling about 156,063 pages.411 He noted that the Trial Chamber’s “new task” was to deliberate and produce a judgment, observing with some understatement that the scope of the case was “broad and complex.” 412 The Trial Chamber informed the Office of Administration that it hoped to deliver a verdict in the second or third quarter of 2018.413 The verdict in Case 002/02 would actually not arrive until the fourth quarter of 2018. On November 16, 2018, the Trial Chamber announced convictions of Nuon Chea and Khieu Samphan for war crimes, genocide, and other crimes against humanity. Chea was found guilty of genocide against Cambodia’s Cham and Vietnamese ethnic minorities, while Samphan was convicted only for genocide against the Vietnamese—perhaps an ironic outcome since both of them continue to blame Vietnam for the mass killing during their regime. They were also convicted of a wide range of crimes against humanity, including murder; extermination; enslavement; deportation; imprisonment; torture; persecution on political, religious, and racial grounds; and the other inhumane acts of attacks against human dignity and through conduct characterized as enforced disappearances, forced transfer, forced marriage, and rape within the context of forced marriage.414 They were sentenced to life imprisonment, sentences that would run concurrently with their previous life sentences for crimes against humanity. On July 1, 2019, Nuon Chea and Khieu Samphan appealed their genocide convictions to the Supreme Court Chamber.415 One month later, on August 4, Nuon Chea died in hospital.416 After twelve years of judicial operations, Case 002 had not yet reached finality, but had finally delivered a first instance judicial verdict deciding

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FIGURE 8.3. Co-Prosecutor Robert Petit interviews informant, November 2006.

that what happened in Cambodia was indeed genocide. That question—Was there a genocide in Cambodia?—had long been the subject of debate among scholars. For example, William Schabas has argued that because the vast majority of Khmer Rouge victims were ethnic Khmer, the violence does not meet the definition in the UN Genocide Convention, and that moreover, while the repression against the Cham group might well be characterized as “cultural genocide,” it too fails to meet the legal definition of genocide.417 Gregory Stanton has directly challenged the Schabas interpretation, arguing that Schabas is not adequately familiar with the facts of the Cambodian case and that Khmer Rouge persecution of the Cham and Vietnamese minorities was not an attempt at assimilation but rather constituted a deliberate attempt to exterminate them, and hence does meet the legal definition of genocide.418 While the verdict on this question from the ECCC may not end this scholarly dispute, it is to be hoped that the facts marshaled by the co-prosecutors in the case against Khmer Rouge leaders Nuon Chea and Khieu Samphan will shed additional light on the debate. It also delivered to the Cambodian people at least a small measure of genocide justice.

Chapter Nine

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After the co-prosecutors submitted the first Introductory Submission on July 17, 2007, prosecution investigators immediately turned their attention to a second set of potential suspects. This action set in motion a drama that would continue for more than a decade, and as of this writing, has yet to reach a final conclusion. As international investigators pressed forward with the work, it soon became evident that their national colleagues lacked enthusiasm for the continuing investigation. The clash between the classical legalism of the international co-prosecutor and the instrumental legalism of the national co-prosecutor was about to become manifest for all to see. Moreover, soon enough it also became clear that the Cambodian government shared this lack of enthusiasm. There were signs that the government was opposed to seeing additional cases added to the KRT docket. As early as November 2007, government spokespersons were sending signals that the accused persons in Case 002 would be the extent of the court’s workload.1 “As stipulated in the convention, the ECCC is intended to bring to trial the ‘mastermind’ of the genocide and all human right violation [sic],” Information Minister Khieu Kanharith told journalists. “We do not intend to go deeper, this [is] for the sake of national reconciliation.”2 Nonetheless, the Office of Co-Prosecutors pursued the task with gusto, and the integrated structure of the office ensured that national and international staff members were all involved. Of the original sixteen individuals

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identified by investigators as “persons of interest,” five had been named in the first Introductory Submission. One—Ta Mok—had died. That left ten remaining names, and investigators concentrated on these individuals. As the preliminary investigations continued, the co-prosecutors ruled out three more suspects, finding that either such crimes as they might have committed were not especially heinous, or it was not possible to identify sufficient inculpatory evidence. By mid-December, the list of suspects was solidifying.3 In early 2008, however, OCP investigators learned that another suspect had recently died of accidental causes,4 leaving the OCP with six persons of interest. Investigators then sharpened their focus on the remaining suspects. The co-prosecutors had two “prongs” of personal jurisdiction—that is, who was liable to be prosecuted. The first prong was “senior leaders,” loosely defined as Khmer Rouge leaders who had national responsibilities, such as members of the Standing Committee or Central Committee of the Communist Party of Kampuchea, heads of government ministries such as Foreign Affairs or Social Affairs, and members of the General Staff of the Revolutionary Army of Kampuchea. The second prong of personal jurisdiction was the “most responsible,” which in theory could be anyone who had committed adequately heinous crimes that were within the jurisdiction of the tribunal. The general idea developed by OCP was that the first prong would be used to show who devised regime policies and ordered that those policies be carried out, and the second prong would be used to show what happened when those orders were carried out and the policies implemented. This would yield a combination of top-down and bottom-up cases, and would hopefully show how the nightmare that was Democratic Kampuchea actually unfolded. The first Introductory Submission focused on the “senior leaders” prong, while the remaining suspects primarily fell under the “most responsible” prong. The “crime base” is the set of incidents upon which prosecutors build their cases. Innumerable crimes were committed during the Khmer Rouge period, so prosecutors clearly could not bring all of them to court. They would have to select representative examples of the crimes. OCP investigators believed that the genocide committed during the Khmer Rouge regime was nationwide in scope, but due to the geographic distribution of persons of Cham and Vietnamese ethnicity, the majority of the victims were physically located in the East, Central, and Northwest zones. Similarly, because

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FIGURE 9.1. Timelines for Case 003

FIGURE 9.2. Timelines for Case 004

of the Standing Committee’s decision to deport 500,000 New People—that is, Cambodians who were residing in the last enclaves of the Khmer Republic when the Khmer Rouge seized power on April 17, 1975—to the Northwest Zone, many of these deportees perished due to inadequate preparations to house and feed them. Further, the Standing Committee’s subsequent

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instructions that “enemies” should be sought out among the New People meant that very large numbers of New People became victims of execution in the Northwest Zone. Finally, in 1978, the massive purge of the East Zone resulted in large numbers of persons being deported from the East Zone to the Central Zone, where evidence showed that many of them were executed at district echelon security offices. Consequently, investigators decided to focus primarily on these three zones—the East, Central, and Northwest—in developing the crime base for the remaining cases. Notwithstanding the progress in the preliminary investigation, it did not take long for indications that something might be amiss inside of the OCP to begin seeping out into public view. International Co-Prosecutor Robert Petit met with his national counterpart, Chea Leang, in early March 2008 to review progress on the investigation of the remaining suspects.5 Leang was unenthusiastic, but did not demand that Petit order his investigators to halt their work and did not insist that her own investigators refuse to participate. When Chea Leang informed Petit in late May that Deputy Prime Minister Sok An was unhappy about the continuing investigations,6 however, Petit decided that some sunshine might be a good antidote, and went public with the fact that he was working on additional cases. There was also the fact that the court was approaching donors for a major tranche of new funding; knowing that there was more work coming down the pipeline might help to loosen their purse strings. “I don’t see how political pressure would have anything to do with the decisions I’m supposed to be making,” he told journalist Erika Kinetz. “We make our decisions on evidence and the law.”7 When approached for comment on the same story, National CoProsecutor Chea Leang claimed that she was “unaware” of plans for additional cases.8 The article went on to speculate about a possible dispute between the two prosecutors. That turned out to be a prescient bit of journalism. “During the preliminary investigations conducted from July 2007 to November 2008,” the national judges of the Pre-Trial Chamber (PTC) later noted, “teams of National and International staff members of the Office continued to analyse the evidence.”9 By August 2008, drafts of a new Supplementary Submission for Case 002 and two new Introductory Submissions began to solidify, and Chea Leang directed her staff to determine if any of the suspects held positions in the Royal Government; two of them— Sous Met and Meas Muth—indeed did.10 On September 16, the national

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and international co-prosecutors and their deputies met to review the draft submissions. Leang argued that with fighting against Thai forces taking place on the northern border at Preah Vihear, now was not the right time to go forward with new submissions, especially given that one of the suspects was leading troops at the border—though she did not offer any evidence to demonstrate that this was in fact the case.11 Leang did concede that three of the six suspects appeared to fall within the personal jurisdiction of the court, but argued that the other three did not. This seemed like progress. Three weeks later, however, another meeting of the principals and deputies about the new submissions revealed that the lack of enthusiasm was hardening into a determined resistance. “I don’t want to talk about the facts,” Leang began.12 Returning to the trouble at the Thai-Cambodian border, she argued that new submissions would threaten Cambodia’s peace, stability, and national reconciliation. Petit countered that the original budget documents for the court envisioned ten to twelve accused, and everyone had agreed on that. “Oh,” replied the national co-prosecutor, “can you get me a copy of that? It might help me to convince them.”13 The new submissions were ready to send to the co-investigating judges in mid-November. The accused in Case 003 were the two most senior surviving Khmer Rouge military leaders. Sous Met had been secretary of Division 502, which was the Khmer Rouge air force. Meas Muth was the former secretary of Division 164, which was the Khmer Rouge navy. Both had also been associated with the Communist Party of Kampuchea Central Committee, and both had roles on the Revolutionary Army of Kampuchea General Staff. Case 004 involved a more complicated set of charges and had civilian cadres as suspects. The three individuals named in 004 were Ao An, the former deputy secretary of the Central Zone; Yim Tith, a former secretary of the Northwest Zone; and Im Chaem, former secretary of the Northwest Zone’s Preah Net Preah District, as well as a member of the Sector 5 Committee. A Supplementary Submission in Case 002 naming Van Rith, the former minister of commerce, had also been prepared.14 On the 20th, Petit asked Leang to sign the submissions, but she asked for more time to study them. Petit gave her three days. When it became clear that she would not sign, the international co-prosecutor directed his staff to prepare documents for a formal disagreement. On December  3, Petit sent his statement of disagreement to the director of administration,

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who immediately forwarded it to the Pre-Trial Chamber, along with the Supplementary Submission and two Introductory Submissions.15 The substance of the arguments in the dispute between the co-prosecutors was not particularly complex. Early on in the dispute, however, it came to the attention of the international co-prosecutor that the suspect named in the Supplementary Submission had expired from natural causes,16 so he withdrew that submission from the jurisdiction of the Pre-Trial Chamber.17 For the remaining two submissions, the international co-prosecutor argued that the only thing the Pre-Trial Chamber needed to determine was whether or not the accusations in the submissions met the “reason to believe” standard of proof.18 For her part, the national co-prosecutor advanced a collection of arguments. First, she argued that the new submissions were not necessary because all of the facts and crimes described in them were already under the competence of the co-investigating judges on the basis of the first Introductory Submission.19 Second, in an exercise of her “prosecutorial discretion,” she held that the suspects named in the submissions fell into neither the senior leaders nor the most responsible prong of the court’s jurisdiction; “that current considerations of peace, stability and national reconciliation argue against initiating new prosecutions”; and that the resources required for new prosecutions would place the existing trials “in jeopardy.”20 Finally, the national co-prosecutor argued that the preliminary investigation resulting in the new submissions was illegal because it had been conducted “without her knowledge or assistance.”21 “The National CoProsecutor was not aware of it.”22 It would require nearly nine months of deliberations for the Pre-Trial Chamber to rule on the dispute, or rather, fail to rule on the dispute, insofar as the chamber was unable to assemble the supermajority of four votes to issue a definitive ruling. The judges split 3-to-2 along national-international lines, with the national judges supporting the position of the national coprosecutor and the international judges supporting the international coprosecutor. In their reasoning, the national judges found that the facts and crimes listed in the second and third Introductory Submissions already existed in the first Introductory Submission, and consequently the second and third Introductory Submissions were not necessary.23 In contrast, the international judges found that the national co-prosecutor in her briefings to the Pre-Trial Chamber “relies upon a confusion between the legal

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characterization of alleged criminal acts and the facts concerning alleged criminal acts that are forwarded for investigation.”24 They subsequently found that once facts and crimes were properly defined, there were new facts in the second and third Introductory Submissions, and hence the reasoning of the national co-prosecutor was “not sufficient to block the forwarding of the New Submissions to the Co-Investigating Judges.”25 Regardless of these findings, the fact that the Pre-Trial Chamber was unable to achieve the supermajority necessary for a decision meant that by default the new submissions would go forward to the Office of Co-Investigating Judges. With International Co-Prosecutor Robert Petit having recently resigned for personal reasons, Acting International Co-Prosecutor Bill Smith sent the second and third Introductory Submissions to the Office of CoInvestigating Judges on September  7, 2009.26 Prime Minister Hun Sen lashed out immediately. “If you tried more suspects without taking national unification and peace into consideration and if war re-occurred, killing between 200,000 and 300,000 people more, who would be responsible for it,” he demanded.27 “I will not allow anyone to destroy what I have achieved,” he continued. “The value of peace here is huge.”28 Later in the week, Hun Sen softened his rhetoric, but suggested that the international prosecutors ultimately would not be in control of the situation. “Please go ahead with the procedures. I will not have a say, but the thing is that you need to find a supporting force.” Alluding to the court’s supermajority voting principle, he noted, “you need four votes, thus the final results are zero.”29 Once they arrived in the Office of Co-Investigating Judges, however, the new submissions went nowhere fast.30 The judges quickly agreed that the appropriate course of action would be to focus their resources on completing the judicial investigation of Case 002 before turning their attention to other matters.31 “The immediate response was obvious,” International CoInvestigating Judge Lemonde later wrote, “since the investigators were mobilized with hearing the last witnesses in Case 002, since the lawyers were beginning to work on the closing order, the new files would have to wait.”32 But Judge Lemonde also believed that his colleague, National CoInvestigating Judge You Bunleng, would adopt the same position that had been taken by National Co-Prosecutor Chea Leang with respect to the new cases. Consequently, Lemonde recognized that he faced a serious problem. “I knew for a fact that I had a time bomb on my desk.”33

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Lemonde’s solution to this problem was to evacuate the area, leaving it to others to attempt to defuse the time bomb.34 He did make fitful efforts to persuade Bunleng to allow investigators to begin examining Cases 003 and 004, including a controversial episode in which Bunleng signed and then promptly “unsigned” a rogatory letter authorizing investigators to begin work,35 but in the end, Bunleng would not be moved.36 Ultimately, Lemonde demonstrated his fidelity to classical legalism. “But I also often had occasion to say publicly that I was there to do the work of a judge and that the day I would not be able to do the work in a manner consistent with the principles of law, I would leave.”37 On September  15, 2010, the coinvestigating judges announced that they had indicted all four accused in Case 002,38 and the next day, Judge Lemonde let it be known that he was leaving the court.39 MUSICAL CHAIRS

With the resignation of Marcel Lemonde, the Office of Co-Investigating Judges entered into a period of extraordinary turmoil during which the role of international co-investigating judge would rotate through four incumbents in the space of little more than eighteen months. During this period, virtually no progress was made in carrying out judicial investigations on Cases 003 and 004. That, however, was not entirely out of line with plans laid earlier by the UN and the donor community. By the time that the acting international co-prosecutor delivered the second and third Introductory Submissions to the co-investigating judges, the court had already blown past its originally planned three-year time frame. With the prospect of beginning another lengthy round of judicial investigations, followed by more trials, a concept for an accelerated completion strategy was quickly hatched. The idea was to “slow-walk” Cases 003 and 004 through the judicial investigations until the trial, or as it happened, trials in Case 002 were complete, then transition the two new cases to a “residual mechanism” for trial.40 In this instance, the residual mechanism would be the Cambodian domestic courts. The KRT’s Deputy Director of Administration, Knut Rosandhaug, briefed the “Friends of the ECCC”— the Principal Donors Group—on this idea in January 2010. By the end of Case 002, Rosandhaug explained, there would be adequate “capacity on the

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national side to handle Case 003,” and the Cambodian law on the tribunal could simply be changed to transfer the remaining trials to the national courts.41 The American and Japanese representatives at the meeting agreed that this sounded like a sensible way forward. The Cambodian representative apparently had no comment. Nonetheless, the UN continued to pursue the idea, with the UN Special Expert on the Khmer Rouge Trials, Clint Williamson, continuing to discuss it on his visit in September.42 When UN Secretary-General Ban Ki Moon arrived in Cambodia in October 2010, however, Prime Minister Hun Sen bluntly confronted him in a private meeting. According to Foreign Minister Hor Nam Hong, Hun Sen told the secretary-general that “Case 003 will not be allowed.” 43 Ban Ki-Moon was reportedly furious at Hun Sen’s blatant insistence on controlling the court’s docket, and rumors were rife inside the court that the secretary-general had instructed his staff to resolve the problem forthwith. UN Legal Counsel Patricia O’Brien apparently had words with Dr. Siegfried Blunk, who was replacing outgoing International Co-Investigating Judge Marcel Lemonde.44 Judge Blunk began his career as a prosecutor in Germany, becoming a judge in 1977. From 2003 to 2005, he had served as an international judge on the UN-sponsored Special Panels for Serious Crime in East Timor, a hybrid court established in a largely failed attempt to seek justice for the massive crimes committed at the end of East Timor’s struggle for independence from Indonesia. Consequently, Blunk was experienced with messy legal situations. Thus when Siegfried Blunk arrived at the court in December,45 it appeared that the idea of slow-walking Cases 003 and 004 was off the table, and there was a new plan. Blunk was to make short work of Cases 003 and 004. Before he departed from his office, Marcel Lemonde had issued instructions to his investigators to go into the field and begin gathering evidence for those two cases.46 One of Blunk’s first acts when he took over as international coinvestigating judge was to recall the investigators from the field and order them to stand down.47 There would be no more fieldwork on Case 003 by the international investigators in OCIJ before Judges Blunk and Bunleng announced that they had concluded their investigation.48 Blunk also reportedly told his staff that they should seek new employment, because the office would likely close by the end of 2011.49 Blunk’s plan, however, would not work out as he intended. He had not counted on the zeal of the youthful, idealistic staffers he had inherited from

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his predecessor. The international lawyers in the OCIJ had earned the nickname “Young Jedi Knights,” a riff on the Star Wars film franchise, for their almost supernatural performance in producing the indictment in Case 001. Collectively, they saw Cases 003 and 004 as representing potentially serious crimes that required serious investigation, and thus they were deeply dismayed when Judge Blunk essentially ordered them to remain at their desks and twiddle their thumbs through the early months of 2011. They were stunned when the co-investigating judges announced that they considered the investigation of Case 003 complete, both because they knew that there had been hardly any investigation at all and because they had not been asked to prepare the documents required to formally close an investigation.50 The public statement from the judges, in its entirety, read, “The CoInvestigating Judges today in a public decision concluded the investigations in Case 003 (the Case File containing more than 2,000 pieces of evidence, comprising more than 48,000 pages), and have notified the parties according to Rule 66.1.”51 The international OCIJ staffers were not the only ones taken aback by the Rule 66 notification in Case 003. The international co-prosecutor and his staff were not going to let this move stand unchallenged. They had been monitoring the essentially moribund judicial investigation of 003 and were all too aware of the huge amount of investigative activity that remained to be done. They launched a crash project to develop a set of investigative requests that would detail what they thought the co-investigating judges still needed to do to properly complete the Case 003 investigation. Moreover, International Co-Prosecutor Andrew Cayley was also concerned that the co-investigating judges had released no information to the public about the crime sites under examination in 003—in stark contrast to the procedures followed in Cases 001 and 002—and thus Cambodians who might have been harmed in the crimes putatively being investigated would not be aware that they could file complaints with the court or apply as civil parties.52 As a result, Cayley issued a public statement announcing that he would file investigative requests. He also outlined the crime sites involved, urging interested Cambodians to consider applying as complainants or civil parties, and explained that he would request a six-week extension from the co-investigating judges in the filing deadline for civil parties.53 The co-investigating judges were not amused. They quickly issued a formal order, 54 along with a public statement announcing the order, 55

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requiring the international co-prosecutor to retract his public statement within three days. Oddly, the things that Co-Prosecutor Cayley would be required to retract were plainly stated in the public order by the coinvestigating judges. Cayley immediately appealed the order to the PreTrial Chamber.56 Sustained by a constant series of leaks from senior court officials, the media plunged into a feeding frenzy that would go on for weeks.57 The Pre-Trial Chamber eventually reasoned that the international co-prosecutor had indeed violated the confidentiality of the judicial investigation, but split along national-international lines on what the remedy for that violation should be, effectively upholding the order from the coinvestigating judges.58 Co-Prosecutor Cayley duly issued a retraction.59 Meanwhile, their entreaties to the international co-investigating judge to carry out a proper investigation having been ignored, the Young Jedi Knights decided to take drastic measures. The international lawyers in the office wrote to Secretary-General Ban Ki-Moon in New York, saying, in part, “It is our duty to notify you that we consider, as a matter of law and procedure, that the co-investigating judges did not conduct a genuine, impartial or effective investigation and as such did not discharge their legal obligation to ascertain the truth.” “In our view,” they continued, “the decision to close the investigation at this stage breaches international standards of justice, fairness and due process of law required by the Agreement Between the United Nations and Royal Government of Cambodia.” 60 In effect, the staff on the international side of the OCIJ had declared war on their boss. Judge Blunk responded by sending his own missive to New York, demanding that his entire staff be terminated for insubordination and disloyalty.61 There would be no need for terminations. The first to go was renowned Khmer Rouge scholar Steve Heder, who had been serving as an OCIJ consultant. He delivered a resignation letter to Judge Blunk on May 5, and also made copies available to the media. “In view of the judges’ decision to close the investigation into Case File 003 effectively without investigating it, which I, like others, believe was unreasonable,” Heder began, “in view of the UN staff’s evidently growing lack of confidence in your leadership, which I share; and in view of the toxic atmosphere of mutual mistrust generated by your management of what is now a professionally dysfunctional office, I have concluded that no good use can or will be made of my

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consultancy services to the CIJ. I therefore decided yesterday to discontinue these services with effect from today.” 62 The UN Secretariat in New York soon revealed that it could, or at least would, do nothing to intervene in the situation. UN Legal Counsel Patricia O’Brien wrote back to the OCIJ legal staff in late June on behalf of the secretary-general and informed them that the UN regarded what was happening between the international co-investigating judge and his staff as part of the judicial process, and thus they could not get involved.63 “As the issues in respect of which you seek guidance cannot effectively be separated from those that are currently or that are anticipated to be sub judice,” O’Brien explained, “the United Nations believes that its commitment to noninterference with the judicial process requires that we refrain from intervening in the matter at this stage.” 64 She then promised to provide human resources assistance, meaning that they would be assisted to find new jobs. Feeling that they had been left hanging by UN Headquarters, the legal staff members began to resign, one after another. By mid-June, four more had left their positions.65 The co-investigating judges responded to the resulting avalanche of negative news stories by issuing a statement insisting that they “welcome the departure of all staff members who ignore the sole responsibility of the CIJ’s in this issue,” and that they would continue their work, using consultants, if necessary.66 The plot was about to thicken dramatically. In early September, the Documentation Center of Cambodia released a set of interviews it had conducted in northwestern Cambodia that seemed to indicate unusual patterns of behavior by persons claiming to be ECCC staff.67 This aroused the interest of the co-investigating judges, who apparently suspected an attempt to influence witness testimony.68 On September 19, 2011, they issued a rogatory letter ordering international investigator Paolo Pastore Stocchi to initiate a Rule 35 investigation into possible interference in the administration of justice.69 The international investigator, however, had other ideas; instead, he launched an investigation into Judge Blunk.70 Stocchi proceeded in short order to assemble a damning bill of particulars, accusing the judge of numerous professional improprieties, some of which were arguably of a criminal nature. One particularly pertinent allegation put forward by the investigator was that the co-investigating judges had “stuffed” Case File 003 with irrelevant

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or minimally relevant documents. As a report from OSJI put it, “staff from the Office of Co-Investigating Judges began stuffing the Case 003 file with ‘evidence’ from the Case 002 file, to create the impression that significant work had been done in the 003 investigation,” when in fact very little investigation had been carried out.71 The international judges of the Pre-Trial Chamber later found that “over 1000 documents were transferred from Case 002 on 6 April 2011, with over 130 additional transferred documents being placed in the case file on 26 April 2011.”72 Monitoring the “judicial investigation” from the OCP, it was obvious to me that something either extremely fishy or extremely incompetent was going on at the other end of the hallway. Much of the material transferred from the Case 002 file to the Case 003 file simply had no probative value for Case 003. Some of it was minimally relevant, but included massive amounts of duplication, with eight copies of one speech, five copies of another speech, seven copies each of one category of documents, and so on.73 The OCIJ process had become deeply corrupted and dysfunctional. A more ominous allegation had to do with falsification of documents in the Case 003 file by the co-investigating judges. They had rejected the application of Case 001 Civil Party Rob Hamill to join Case 003 as a civil party, but in their rejection, the judges mistakenly referred to Case 004 rather than 003. Attorneys for Hamill immediately appealed the rejection to the PreTrial Chamber, and while that appeal was under way, the co-investigating judges evidently noticed their error and decided to replace the erroneous documents with corrected versions—but neglected to tell anyone, or make an official record of the changes. “On 7 July 2011, [the Co-Investigating Judges] replaced in the case file the English version of the Impugned Order with a new one, dated 29 April 2011.” Several weeks later, they similarly replaced the Khmer version of the order with a revised backdated version.74 “The Impugned Order was removed from the case file and replaced by the Modified Order, which, although it appears to have been made on 6 July 2011, is backdated to 29 April 2011.”75 Thus, documents that were under appeal in the Pre-Trial Chamber were disappeared from the case file. “The consequence is that the Impugned Order no longer exists.”76 As a result, Judges Lahuis and Downing were forced to conclude that the appeal was rendered moot.77 At best, this was inexplicable sloppiness by the co-investigating judges. At worst, it might have been a crime.78

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Another set of allegations also veered dangerously close to criminal territory. It concerned witness tampering. The suspicion was that staff from the national side of the OCIJ were “proofing” witnesses, that is, doing pre-interviews with them to identify individuals who would give the kinds of answers the co-investigating judges were looking for and could then be interviewed by the investigating judges themselves. As journalist Douglas Gillison put it, this technique offered “the judges the chance to pick and choose which testimony to enter into the record and which to ignore.”79 In the end, though, very few witnesses were interviewed for Case 003. When Co-Investigating Judges Blunk and Bunleng declared that their investigation was complete, only twenty witnesses had statements in the case file.80 None of those interviews was with the two suspects in Case 003, Sous Met and Meas Muth. The contrast with the Case 002 investigation was dramatic. More than 1,000 witnesses had been interviewed for 002, including forty-six separate interviews with the suspects.81 There was no way Case 003 could be legitimately described as having been properly investigated. The denouement did not last long. When confronted with the dossier, Judge Blunk told the investigator that he would not be allowed to add it to the case file. “Go ahead and try to stop me,” the investigator replied. “I will just add another charge against you to the report.”82 Within days, Judge Blunk had resigned as co-investigating judge and returned to Germany.83 The OCIJ investigator filed his report with UN Legal Counsel Patricia O’Brien on October 20.84 In a press release after his resignation, Blunk pointed to repeated statements by Prime Minister Hun Sen, Information Minister Khieu Kanharith, and Foreign Minister Hor Nam Hong to the effect that Cases 003 and 004 “will not be allowed.” While “he will not allow himself to be influenced by such statements,” Blunk wrote, nonetheless they “will be perceived as attempted government interference with Cases 003 and 004.”85 And so he was gone. That solved one problem for the UN, but hardly untangled what had become a Gordian knot. Human Rights Watch had demanded that both coinvestigating judges be sacked.86 In the wake of Blunk’s departure, Judge You Bunleng vowed to carry on,87 but the Documentation Center of Cambodia’s Youk Chhang demanded that the UN investigate Bunleng.88 He was not

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alone. The Open Society Justice Initiative also called for the UN to confront the Cambodian government and extract guarantees of noninterference. “The UN needs to seek public guarantees from Prime Minister Hun Sen and his government of full cooperation in all four of the open cases before the court,” said James Goldston. “If those guarantees are not forthcoming, the UN should reassess its commitment to the court.”89 The line from Amnesty International was identical. “The UN should seek guarantees from the Cambodian government that it will not interfere in its proceedings and make clear that any attempts to influence the work of the (court) will force the UN to review its involvement.”90 The UN was unmistakably on the hot seat. The UN’s counterattack began with a letter to the editor of the International Herald Tribune from UN Legal Counsel Patricia O’Brien, responding to an editorial by OSJI’s James Goldston, who had characterized the UN’s response as “business as usual.” “In a statement made on Oct. 10,” O’Brien began, “the United Nations noted the reasons given by the judge for his resignation, reiterated that the E.C.C.C. must be permitted to proceed with its work without interference from any entity, including the royal government of Cambodia, and indicated that the United Nations would continue to monitor the situation at the E.C.C.C. closely.”91 In line with these sentiments, the legal counsel concluded, she would soon travel to Cambodia to discuss the issue of political interference. The following week O’Brien went to Phnom Penh to meet with Deputy Prime Minister Sok An. A statement released by the UN after the meeting said O’Brien “strongly urged the royal government of Cambodia to refrain from statements opposing the progress of cases 003 and 004 and to refrain from interfering in any way whatsoever with the judicial process.”92 A parallel statement from the government mildly observed that “the two sides had not ‘deeply’ discussed the two controversial cases.”93 THE TWEETING JUDGE

The next challenge facing the UN was to replace Judge Blunk. The international reserve co-investigating judge was Swiss, one Laurent KasperAnsermet, who had gained a reputation as an aggressive investigator during his work on the UN’s oil-for-food scandal.94 And unlike Blunk, KasperAnsermet intended to aggressively investigate Cases 003 and 004, but he

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was faced with a devastated office, from which all eight members of the legal staff had resigned. He did, however, still have a group of international investigators in place, and they were eager to return to the field. But first he would have to establish some sort of modus vivendi with his national colleague, Judge You Bunleng. Judge Kasper-Ansermet was also an avid user of the social microblogging site Twitter, and throughout the drama of Judge Blunk’s tenure, KasperAnsermet’s tweets had frequently included links to media articles about what was happening at the court.95 For example, on October 11, 2011, the day after Blunk’s resignation as international co-investigating judge, Judge Kasper-Ansermet tweeted “the Krtribunal has to proceed ‘without interference from any entity, including the Royal Government of Cambodia.’ ” The quote was from the spokesman for UN Secretary-General Ban Kimoon, and the tweet included a link to an article in the British newspaper The Independent, citing the quote.96 The Independent article also included searing criticism of the government from Human Rights Watch and the Cambodian Centre for Human Rights. This tweet apparently did not escape the notice of the Cambodian government. The modus vivendi with You Bunleng would never happen. According to Kasper-Ansermet, You Bunleng blocked his every effort to perform his duties and conspired with other units at the court to frustrate any and all of his actions.97 Kasper-Ansermet had determined that “the judicial investigation [in Case 003] conducted so far appears to be defective and prejudicial to all parties,” and therefore on December 2, 2011, he forwarded to You Bunleng a draft order resuming the investigation.98 Three days later, Judge Bunleng responded by saying that he could not discuss the substance of any judicial matters with Kasper-Ansermet until he had been duly appointed as international co-investigating judge by the Supreme Council of Magistracy.99 That would be Judge Bunleng’s only formal communication with Judge Kasper-Ansermet—not counting a slew of dueling press releases that began almost immediately. On December 6, Kasper-Ansermet responded to Bunleng’s rebuke by issuing a press release in which he announced his intention to carry out investigations and to take judicial actions.100 A few hours later, Bunleng put out his own press release, stating that he had informed Judge KasperAnsermet that until he was officially appointed, “any procedural action taken by Judge Laurent Kasper-Ansermet is not legally valid.”101 This

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exchange set the tone for the relationship between the two co-investigating judges. It also signaled to the press that all was not well in the OCIJ.102 Queried by journalists, a spokesman for the Council of Ministers insisted that the government had no involvement in issues concerning the co-investigating judges. “Only the ECCC and the Supreme Council make those decisions,” Phay Siphan said. “Don’t get the feeling that our government has put his or her hand in this decision.”103 In fact, there had already been a flurry of letters, phone calls, and meetings about Kasper-Ansermet between the highest levels of the Cambodian government and the UN. On October 18, scarcely one week after Siegfried Blunk resigned, the UN Secretary-General wrote to Hun Sen, requesting that he forward Kasper-Ansermet’s name to the Supreme Council of the Magistracy for formal approval. Two weeks later, Hun Sen wrote back, suggesting that the government had reservations about Kasper-Ansermet in view of “certain activities by Mr. Laurent Kasper-Ansermet that have been brought to public attention.”104 This was followed by additional exchanges of letters, as well as conversations between the UN legal counsel and Deputy Prime Minister Sok An, culminating in a suggestion by Hun Sen that the UN and Cambodian government appoint expert legal teams to “examine the situation in detail.”105 Hun Sen then met with Secretary-General Ban Ki-moon in mid-November at the ASEAN Summit in Bali to further discuss the situation. There were more conference calls and letters between the UN Secretariat and officials at the Council of Ministers until Sok An finally agreed on December 20 to forward Kasper-Ansermet’s nomination to the Supreme Council of Magistracy. Meanwhile, the struggle between Kasper-Ansermet and Bunleng continued, drawing in more players. Kasper-Ansermet recorded a disagreement between the two judges in respect to Case 003 on December 15,106 and forwarded that and related documents to the Office of Administration. The next day, the acting director of administration sent these documents onward to the Pre-Trial Chamber, with copies to the national co-investigating judge.107 Following an inconclusive deliberation among the judges of the Pre-Trial Chamber on January 27, President Prak Kimsan returned the documents to the acting director of administration with a note indicating that “Mr.  Laurent Kasper-Ansermet does not have enough qualifications to undertake his duty according to legal procedures in force.”108 Alarmed at this development, the international judges of the Pre-Trial Chamber

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distributed a memorandum asserting that the chamber had not completed its deliberations in the matter, and that Judge Kimsan’s note “had no legal effect on the outcome of the Disagreement cases.”109 Insofar as Judge Kimsan refused to reverse course, however, Judges Downing and Chung felt compelled to issue a dissenting opinion, albeit one in which there was no corresponding majority opinion.110 They found that, contrary to the apparent opinion of Judges Kimsan, Ney, and Huot, Judge KasperAnsermet indeed did have standing to bring the disagreement before the Pre-Trial Chamber,111 and that he was also empowered to reconsider the Notice of Conclusion of Judicial Investigation previously issued by Judges Blunk and Bunleng.112 Because the PTC did not achieve a supermajority to overturn Judge Kasper-Ansermet’s decision, they concluded, the action proposed by the international reserve co-investigating judge “shall be executed.”113 Kasper-Ansermet himself told a journalist that he intended to proceed with the investigations. “My duty is to investigate the introductory submission from the co-prosecutors, and I have no choice,” he said. “I am legally obligated to do it, and I will assume this mission.”114 It would not be quite as simple as that. Following the conclusion of the disagreement procedure, Kasper-Ansermet signed the order for the resumption of the investigation in Case 003, instructing his greffier to have the document filed in the case file and notified to the parties.115 The case file officer, the head of the Court Management Section, and the OCIJ national legal team leader all refused to allow the document to be filed and notified, explaining that they were operating under the instructions of the national co-investigating judge.116 When he attempted to launch an investigation for interference in the administration of justice against the national staff members who had blocked his way, those staffers simply refused to cooperate with the attempted investigation.117 Judge Kasper-Ansermet was also denied access to the seal of the Office of Co-Investigating Judge, a necessary emblem in order for documents to be considered official.118 The Ministry of Interior then denied his requests for a new seal of office to be issued to him.119 When Kasper-Ansermet attempted to send his international investigators into the field to continue investigations, he found that they were unable to obtain the cooperation of the court’s drivers and transcribers, and that there were difficulties in obtaining support from the Witnesses and Experts Support Unit.120 At every turn, it seemed, Kasper-Ansermet found his attempts to carry out his duties frustrated.

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His frustrations were not limited to his attempts to revive investigations in Case 003. Kasper-Ansermet, disturbed by what he considered to be irregularities in the procedures of the Pre-Trial Chamber during the disagreement process, moved to have PTC President Prak Kimsan disqualified.121 In view of the opinions expressed in their ruling on the disagreement,122 the PTC’s international judges recused themselves from the disqualification motion.123 Since Kimsan himself was also ineligible to rule on the disqualification motion, this meant the Pre-Trial Chamber needed three replacement judges to sit in review of the motion. Under normal circumstances, it would be the duty of the court’s Judicial Administration Committee to name replacement judges for such a hearing, but that committee failed to act, and thus the matter came to rest in limbo.124 As it dawned on him that the Cambodian government might have taken offense at his Twitter habit, Kasper-Ansermet became more cautious with his tweets, but in a way that showed a sort of rebellious defiance, mocking what he apparently considered to be censorship. On January 13, he tweeted, “Cambodia Khmer Rouge xxxxx xxxxxx xxxxx xx xxxxxx.”125 This tweet included a link to a BBC story entitled “Cambodia Khmer Rouge trial judges argue in public.” Two days later, he tweeted, “Does my known determination to investigate case three and four explain the opposition by some to my official nomination?” But then he thought the better of it, and deleted that tweet.126 Even so, the internet remembers. On Friday, January 13, around midafternoon, National Co-Prosecutor Chea Leang summoned her legal staff from the OCP and departed the premises with them, bound for a meeting of the Supreme Council of Magistracy (SCM).127 Leang was a member of the SCM, as was her assistant, National Deputy Co-Prosecutor Yet Chakriya.128 Another senior official of the ECCC attending the meeting would be National Co-Investigating Judge You Bunleng, who was also a member of the Supreme Council. The agenda of the meeting would be the nomination by Secretary-General Ban Ki-moon of Laurent Kasper-Ansermet to become the ECCC’s international coinvestigating judge. Later that evening, Leang phoned her international counterpart, Andrew Cayley, to inform him that the SCM had rejected Kasper-Ansermet’s appointment.129 Word of the decision spread like wildfire across Phnom Penh, prompting a spokesperson for the Council of Ministers to officially deny the next day that any decision had been made.

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“Deliberations,” he insisted, “were continuing.”130 Tension simmered at the court as everyone awaited an announcement. Early in the morning of January 20, 2012, I alerted International CoProsecutor Andrew Cayley that King Norodom Sihamoni had departed Cambodia, bound for Beijing, China, purportedly to accompany King Father Norodom Sihanouk to a doctor’s appointment.131 I informed him of an arrangement that had evolved since Norodom Sihanouk had returned to the throne in 1993. Whenever the government wished to promulgate a law or a decree with which the king did not agree, the difficulty was amicably resolved via the expedient of the king temporarily decamping to Beijing, whereupon the acting head of state, ruling party President Chea Sim, would promulgate the impugned law in the king’s stead. And now, like father, like son. Later that same afternoon, the Cambodian mission to the UN in New York delivered a diplomatic note to the UN Secretariat announcing that the SCM had declined to approve Kasper-Ansermet.132 The reaction of the UN Secretariat was uncharacteristically direct. The Cambodian government, the secretary-general’s spokesperson flatly declared, was in breach of the UN-Cambodia agreement on the tribunal.133 Newly appointed as the Secretary-General’s Special Expert on the Khmer Rouge Tribunal, David Scheffer was immediately dispatched to Phnom Penh to intervene with the government in an attempt to reverse their decision.134 On the table now was a provision of the agreement that was informally known as “the nuclear option.” Article 28 of the UN-Cambodia agreement, formally titled “Withdrawal of Cooperation,” was intended for just such situations. “Should the Royal Government of Cambodia change the structure or organization of the Extraordinary Chambers or otherwise cause them to function in a manner that does not conform with the terms of the present Agreement, the United Nations reserves the right to cease assistance, financial or otherwise, pursuant to the present Agreement.”135 Another provision of the agreement provides, “In case there is a vacancy or a need to fill the post of international co-investigating judge, the person appointed to fill this post must be the reserve international co-investigating judge.”136 The Cambodian government had failed to conform with the terms of this provision. David Scheffer’s mission would fail to produce any change in the government’s decision to reject Judge Kasper-Ansermet. An anodyne press

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release put out by the Council of Ministers after Scheffer’s meetings with Deputy Prime Minister Sok An made it clear that the ruling party would not budge on the issue. “Although the Deputy Prime Minister and the Special Expert have differing views on the interpretation of the ECCC Agreement,” the document stated, “they intend to continue their discussions on the most critical issues, and both remain optimistic that the court can achieve its mandate.”137 The UN ultimately would not invoke the “nuclear option.” The day after the “Joint Statement” from Sok An and Scheffer, Minister of Information Khieu Kanharith commented at a public event that the government had four options to continue the operation of the KRT: 1) it could continue with the cooperation of the UN; 2) if the UN withdrew, it could ask UN member states to contribute judges; 3) Cambodia could invite famous foreign judges to serve at the court; or 4) Cambodia could continue to operate the court with Cambodian judges alone.138 None of the options involved Laurent Kasper-Ansermet. For their part, UN officials continued to insist that Kasper-Ansermet had all the authority he needed to continue carrying out his duties in the OCIJ. “Our view is this particular individual, Judge Kasper-Ansermet,” David Scheffer told reporters after his meetings with government officials, “has clear authority to fulfill duties in this country and we look forward to him doing so.”139 It would appear that Kasper-Ansermet envisioned his duties, at this juncture, included addressing what he obviously regarded as improper behavior on the part of his Cambodian adversaries. In addition to his Rule 35 investigation against national staff members of the court for interference in the administration of justice, and his effort to have Judge Prak Kimsan disqualified, Kasper-Ansermet also went after his erstwhile counterpart, Judge You Bunleng. Having concluded through his Rule 35 investigation that Judge Bunleng was responsible for frustrating his attempts to carry out his duties of office,140 Judge Kasper Ansermet issued a complaint against Bunleng to the Disciplinary Council of the Supreme Council of Magistracy, alleging his “serious interference with the conduct of the judicial investigation in Case Files 003 and 004.”141 The response of the SCM to this initiative remains unknown, though no sanctions appear to have been applied to Judge Bunleng. On March 19, 2012, only 104 days after having announced his arrival at the ECCC, Judge Kasper-Ansermet announced that he had tendered his resignation to the secretary-general, effective May 4.142 In announcing his

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resignation, Kasper-Ansermet complained that “Judge You Bunleng’s active opposition to investigations into cases 003 and 004 has led to a dysfunctional situation within the ECCC.”143 He pledged that he would publish a “description of the situation,” and indeed he did, on March 21 publicly releasing a detailed and extraordinary document entitled “Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004.”144 The impact of this commentary in the media was sensational,145 and the inspiration it provided to defense attorneys at the court was substantial.146 The Press and Quick Reaction Unit at Cambodia’s Council of Ministers responded to the imbroglio by declaring that the government did not detect any Cambodian staff at the ECCC breaking any rules, asserting that what was happening in Cambodia is “even better than Libya.”147 Spokesman Ek Tha added that the tribunal was a “model court.”148 The ECCC’s Cambodian judges could not allow Kasper-Ansermet’s broadside to stand uncontradicted. You Bunleng unleashed a long refutation of the Swiss judge’s allegations.149 Among other things, Bunleng insisted that in fact there had been no disagreement under Rule 72 between the coinvestigating judges, because Kasper-Ansermet did “not have legal authority” to seize the Pre-Trial Chamber with a disagreement.150 He referred to other allegations by Kasper-Ansermet as “an exaggeration” or “a total exaggeration,” accused Kasper-Ansermet of threatening Bunleng’s staff, and declared that Kasper-Ansermet was guilty of “procedural misconduct.”151 For his part, Kasper-Ansermet dismissed Bunleng’s riposte as “confused allegations.”152 The three national judges of the Pre-Trial Chamber also issued a statement denouncing Kasper-Ansermet and his allegations, referring to him as a “manipulator” who “shamelessly caused problems in relation to cases 003 and 004 and transformed all disputes into new forms.”153 The spectacle was entirely unedifying, but all in all, it did clearly substantiate Kasper-Ansermet’s assertions that major organs of the court were dysfunctional. In what undoubtedly was his most provocative act, Judge KasperAnsermet decided to launch investigations into the roles played by some of the very highest officials of Cambodia’s ruling party—including Cambodian People’s Party President Chea Sim and Honorary President Heng Samrin—during the Khmer Rouge regime. He began these inquiries in

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mid-February154 but waited until his very last day in office, May 4, to request authorization from the co-prosecutors to do so, by submitting a forwarding order to them. The co-prosecutors declined to authorize the judge to investigate the alleged new facts outlined in the forwarding order.155 A month after it was issued, the forwarding order was leaked to an Australian journalist, who immediately published reports identifying the senior Cambodian political leaders as “persons of interest” to tribunal investigators.156 Soon thereafter, the forwarding order and the co-prosecutor’s response to it came into the possession of the Nuon Chea defense team, and they promptly published the confidential documents—ironically, at the same hour of the same day that Nuon Chea defender Michiel Pestman was receiving a contempt citation from the Trial Chamber for, among other things, violating judicial confidentiality157—demanding that the CPP leaders named in the forwarding order be called before the Trial Chamber to testify.158 It was all part of the fallout from a parting shot by an international judge who did not seem to appreciate how the legal game was played in Cambodia. Under exceptionally challenging circumstances, Kasper-Ansermet did manage to achieve some substantive progress on Cases 003 and 004 during his brief and troubled tenure at the court. He issued an order reopening Case 003, found that the suspects in 003 fell within the personal jurisdiction of the court, formally informed the suspects in Cases 003 and 004 that they were under investigation, and advised them of their rights.159 He also admitted a civil party to the cases and ordered that his counsel have access to the case files. In addition, he recognized defense attorneys for some of the accused and resumed (limited) investigations of Case 003.160 Notwithstanding his sometimes provocative behavior, Kasper-Ansermet carried out his duties as best he could under the circumstances. It would remain for his successor as co-investigating judge—if there would be one—to transform these modest achievements into real momentum for the seriously damaged Cases 003 and 004. ELECTION TIME

The KRT became entangled in the political struggle surrounding Cambodia’s 2013 national election cycle. Opposition leader Sam Rainsy had been stirring the pot for some time with comments such as his April 2012 demand

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that the Khmer Rouge Tribunal summon and convict ruling party President Chea Sim and Prime Minister Hun Sen for genocide.161 As the election approached, Rainsy hammered the theme, telling supporters that when the opposition won the election, “the international court” would summon senior ruling party leaders and “will convict them.”162 The ruling party decided that two could play this game. The excitement escalated when the Council of Ministers’ Press and Quick Reaction Unit posted a recording that purported to show prominent opposition politician Kem Sokha saying that the Khmer Rouge S-21 torture center was “staged.”163 Opposition spokespersons quickly insisted that the recording had been doctored and taken out of context, but S-21 survivor Chum Mey was enraged and threatened to sue Sokha.164 Sam Rainsy pushed back, publishing an open letter in which he asserted that Prime Minister Hun Sen “is behaving like a Khmer Rouge accomplice” by interfering in the KRT.165 At the urging of Hun Sen, Cambodia’s National Assembly drafted and adopted a genocide denial law at record speed—just a single week—as opposition deputies were excluded from the debate and vote.166 The day after the law was passed, Chum Mey held a public protest against Sokha, complete with large, professionally produced banners reading in Khmer, “Kem Sokha is currently interfering with the Khmer Rouge Tribunal.”167 This was soon followed by a civil lawsuit against Kem Sokha, filed by Chum Mey and several other Khmer Rouge survivors.168 Some journalists suggested that ruling party officials were assisting Mey’s efforts to attack the opposition leader.169 BUDGET BATTLES CONTINUED

The March 2011 tsunami and the subsequent meltdown of the Fukushima Daiichi nuclear plant destroyed not only the Japanese nuclear power industry but also Japan’s ability to continue as the dominant source of funding for the KRT. Through 2011, Japan had supplied nearly 50 percent of the total funding for the court. But as Japanese Judge Motoo Noguchi noted in a memorandum during budget discussions in June 2011, because of the disaster Japan “won’t be able to maintain the similar level of financial contribution, as was informed to the United Nations and donor countries in many occasions.”170 Consequently, the other donors were pushing for deep cuts to the KRT’s budget. They had already forced major reductions for the 2010–11

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budget in early 2011, slashing it by $15.1 million.171 Even so, annual costs had been rising steadily since 2006, and at $40.7 million, the projected spending for 2011 was still 33 percent higher than the previous year.172 Donor contributions to defray the court’s expenses would arrive slowly, and negotiations over the 2012–2013 budget would prove brutal. Throughout 2012, the ECCC was in permanent financial crisis, and all organs of the court were affected. Beginning late the previous year, contracts for international staff at the court began to be renewed on a month-tomonth basis, rather than annually.173 Court officials traveled to New York with a new budget in February, asking for $92 million to cover 2012 and 2013,174 but donors carved out another $3.4 million before approving the plan.175 Financial officials at the court immediately began to consider putting the international judges of the Supreme Court Chamber on furlough and replacing them with a temporary staffer.176 By May, a court spokesman warned that because $28 million of the court’s budget for the year remained to even be pledged, the international component would run out of money the following month.177 In June, the OCP was forced to liquidate its international investigation/research/analysis unit; my partner and I were terminated by UNAKRT and the remaining national staff in the unit were reassigned. The UN imposed a hiring freeze on UNAKRT in July, leaving the OCIJ, the Trial Chamber, the Defense Support Section, and the Victims Support Section dangerously short of staff.178 In mid-August, Special Expert David Scheffer warned that the UN might have to pull out of the court due to a lack of funding. “We have enough cash for the international budget until the end of August,” he told journalists.179 The Trial Chamber announced in October that it could not continue its normal schedule with current staffing levels, which were at just half of what the staffing table indicated they should be, and so it would reduce the number of weekly hearing days from four to three.180 Later that same week, Scheffer told all international staff at the court that they faced the prospect of mass termination at the end of the year if there were not a major change of fortune in funding for the court.181 At the end of December, the acting director of administration was forced to inform national staff at the court that their salary for the month would be delayed, and that as of January, no funds were available to pay them going forward.182 Staff morale was at a nadir, threatening both the quality and the efficiency of the proceedings.

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The reason pledges to the court were slow in coming and actual disbursements even slower had to do, in part, with conditionality imposed by national legislatures of the donor countries. That conditionality, in part, was a consequence of criticism by court monitors. Perhaps no donor illustrates this issue better than the United States. For the first few years of the court, the United States provided no funding to the KRT at all. Finally, for fiscal year 2010, the U.S. Senate moved to offer modest financial support to the court, but there were strings attached. Following accusations from OSJI years earlier of corruption at the court, the Senate stipulated that funding could only be made available if “the Secretary of State certifies to the Committees on Appropriation that the United Nations and the Government of Cambodia are taking credible steps to address allegations of corruption and mismanagement within the tribunal.”183 This created a bureaucratic hoop through which the State Department had to jump before it could release funds to the court, thus delaying any payments. Identical language was included in legislation for the following two years.184 For fiscal year 2013, the language of the previous three years was retained, and a new condition was added. “If the Secretary of State certifies to the Committee on Appropriations that the Prime Minister of Cambodia is directly or indirectly interfering with the operations and deliberations of such tribunal,” the legislation directed, then no funds could be made available to the KRT.185 This was a relatively easier requirement for State to manage, but the conditionality was starting to get more complex. The following year, however, the Senate Appropriations Committee took a different approach. In response to the Cambodian government’s reluctance to fund national staff salaries at the court, as provided by the UNCambodia agreement,186 the Senate specified that no funds should be made available to the tribunal “unless the Secretary of State certifies to the Committees on Appropriations that the Government of Cambodia has provided, or otherwise secured, funding for the national side of such tribunal.”187 This provision may well have contributed to a change of heart by the Cambodian government later that year. In 2014, a whole new set of concerns bubbled to the surface. For fiscal year 2015, the Senate specified three conditions for a U.S. contribution to the court.188 First, international donors must reimburse “the Documentation Center of Cambodia for costs incurred in support of the tribunal,” an interesting provision in view of the fact that

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the Documentation Center of Cambodia was originally established to do precisely that—support a Khmer Rouge tribunal. Second, the Secretary of State was to certify that the donors and the Cambodian government had determined the costs and timeline associated with winding down the tribunal. And third, the secretary was required to certify that the Cambodian government was “not interfering in the workings of the tribunal.” The first of these requirements would prove difficult to achieve. In 2016, the Senate prohibited U.S. financial contributions to the tribunal but continued to demand that tribunal donors reimburse “the Documentation Center of Cambodia for costs incurred in support of the ECCC.”189 The 2017 legislation contained a truly remarkable provision. In addition to renewing authorization for financial support to the tribunal and again demanding that donors reimburse the Documentation Center, the Senate conditioned a tribunal contribution on certification by the Secretary of State “that the ECCC will consider Case 003.”190 Why the focus on Case 003, but not Case 004? The answer was tucked away in an accompanying report: “Section 7043(c)(2) of the act limits a U.S. contribution to the Extraordinary Chambers in the Courts of Cambodia [ECCC] to Case 003, regarding former Khmer Rouge navy commander Meas Muth who is implicated in the 1975 Mayaguez Incident. The Committee endorses the Department of State’s plan to cease contributions to the ECCC if a closing order is issued for Case 003.”191 This requires a bit of unpacking. First of all, this legislation appears to “earmark,” or reserve, any U.S. contribution to the ECCC to be used for Case 003 only. It also makes clear that the U.S. Senate does not understand how the civil law process at the ECCC actually works. S.3117 indicates that the Senate desires for Case 003 to go forward, but the accompanying report forbids a contribution to the ECCC “if a closing order is issued for Case 003.” As it happens, the only way that Case 003 could proceed to trial would be for the co-investigating judges, or at least one of them, to issue a Closing Order sending it to trial. Be that as it may, the language in the report seems to suggest that the Senate aimed to condition U.S. support for the tribunal on the prosecution of an individual because of acts he was alleged to have committed against U.S. interests, rather than for acts that the tribunal’s international co-prosecutor had determined were within the subject matter jurisdiction of the court. It was yet another extraordinary event in the history of the Extraordinary Chambers.192

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Meanwhile, 2013 was one of the most trying years of all for the financial health of the ECCC. Early in the year, the UN and the donors moved to implement a plan to transition SCC judges to part-time status.193 On January 29, the donor group adopted a revision of the 2012–2013 budget that cut overall spending for 2012 by $7.9 million against a previously approved $33 million, and by $5.8 million against the previously approved $31.8 million for 2013.194 A portion of these savings were to be realized by adjusting the “working methods” of the SCC such that two international judges would become part-time, working from their home countries rather than Cambodia, as of May 1.195 Reductions in force were also applied on the national side, much to the chagrin of national staff. After enduring a lack of pay from December through February, a group of national staff went on strike for a week in March, returning only when Special Expert Scheffer managed to secure funds to cover their back pay.196 In May, a high-powered delegation of diplomats met with Sok An. It included the French and Japanese ambassadors to Cambodia—the co-chairs of the “Friends of the ECCC”—and the Australian chargé d’affairs—Australia chairs the Principal Donors Group in New York.197 Sok An informed the diplomats that the national side of the court had continued to take measures to trim costs, reducing staff from 335 in 2010 to a projected 234 by July 2013.198 Indeed, at the beginning of July 2013, thirty additional national staff did not have their contracts renewed, bringing the national staff roster down to 230.199 Adding insult to injury, the remaining national staffers were told at the end of June that there were no funds to pay their salaries. “I think the environment isn’t good here at the court,” said one, with a hint of understatement.200 In these conditions, it was no surprise that there was soon another strike by national staff.201 The chronic underfunding of both sides of the court and the consequent negative impacts on the ability of the court to function finally began to focus the minds of interested groups. At the end of August, Secretary-General Ban Ki-moon declared that the “very survival” of the court was at stake, and that “financial failure would be a tragedy for the people of Cambodia.”202 Special Expert David Scheffer quickly blamed the Cambodian government for the strike. “The United Nations has pressed the Royal Government of Cambodia repeatedly to step up to its legal obligation so as to avoid such crises,” he said in a statement.203

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Scheffer’s blunt comments were the signal for everyone to pile on. UNAKRT spokesperson Lars Olsen immediately reiterated Scheffer’s comments. Referring to the Cambodian government, Olsen told a radio program, “What is clear is that they have an obligation according to the agreement establishing the ECCC to secure payment of these salaries.”204 Key diplomats added to the pressure. Takayoshi Kiromiya, counselor at the embassy of Japan, told journalists it was important that Cambodia “plays a further greater role to strengthen the budgetary basis of the ECCC.”205 Similarly, a spokesperson for the Australian embassy said that they “encourage the Royal Government of Cambodia and other donors to continue to contribute to a successful trial process.”206 Human rights groups were close behind. Human Rights Watch’s Brad Adams put the onus directly on Hun Sen. “Donors should finally call his bluff,” Adams argued, “and withhold future contributions until the Cambodian government pays its agreed share of the costs of holding the Khmer Rouge accountable.”207 “Cambodian authorities’ failure to respect their commitment is damaging the already shaken confidence the Cambodian people and international community have put into this hybrid UN-backed tribunal,” added Patrick Boudouin, Honorary President of FIDH.208 Up to this juncture—September  2013—the Cambodian government’s total cash contributions toward the ECCC budget amounted to only some $5.8 million,209 out of a total expenditure over eight years of the KRT’s operations of approximately $200 million.210 Thus the government’s cash outlay amounted to less than 3 percent of the tribunal’s overall cost. The government had been resolute over the previous eight years in demanding that foreign donors fund the lion’s share of the cost, and until now had been largely successful in those demands. But with an apparently unsanctioned strike of national tribunal staff and near universal criticism from the international community, Hun Sen agreed in October 2013 to donate $1.8 million to defray the costs of Cambodian staff salaries.211 When national staff at the court again went unpaid the following January,212 the Cambodian government provided another $1.1 million.213 In November 2014, Hun Sen announced another contribution of $1.15 million.214 In the seventeen months between October 2014 and March 2016, the government provided a total of $9.4 million in cash toward the ECCC budget, or nearly twice as much as it had during the first eight years of the court’s existence.215 After years of demanding that foreigners pay for justice in Cambodia, due to

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some combination of international pressure, protests by Cambodian court staff, repeated halts to work at the court brought on by chronic financial shortages, or who knows what, the ruling party finally turned a new page in its approach to financial support of the ECCC. As of late 2017, Cambodia had suddenly become the fourth largest donor to the total ECCC budget, behind only Japan, the United States, and Australia.216 In March 2014, the 2014–2015 budget was approved and published, coming in at $60.5 million.217 That represented an 11 percent decrease from the previous budget and entailed severe personnel cuts, including twelve posts among the internationals and more than 100 on the national side.218 It was a bridge too far. Almost immediately, both the international co-prosecutor and the international co-investigating judge put out calls for “volunteer” lawyers and investigators to relieve serious gaps in their staff rosters.219 The Principal Donors Group soon realized that it had cut too deeply and issued a revised budget for 2015, significantly increasing proposed outlays. $4.9 million was added to the originally slated $28.9 million, bringing the anticipated total for 2015 to $33.9 million.220 The 2016–2017 budget slated $32.2 million for 2016, or just a 5 percent reduction from the previous year.221 This suggested that while the Principal Donors Group was still holding tightly to the tribunal’s financial reins, they had realized that there were limits to how hard they could ride the budget. The KRT’s budget woes reached a critical climax in 2017 when the coinvestigating judges delivered what amounted to an ultimatum to the donor community. On May 5, the judges issued a request for submissions to a wide variety of concerned entities regarding a proposal that the co-investigating judges might effectively terminate Cases 003, 004, and 004/2 by issuing a permanent stay, due to a lack of necessary funding for the operations of their office. This request was distributed to the ECCC Office of Administration, the UN, the Cambodian government, the Principal Donors Group, the special expert of the secretary-general (David Scheffer), the coprosecutors, the civil party co-lead lawyers, and the defense in Cases 003, 004, and 004/2.222 In short order, the substance of this astonishing request was leaked to the media,223 immediately instigating a brouhaha. OSJI condemned the move as “drastic, insufficiently supported and unwarranted.”224 The Documentation Center of Cambodia’s Youk Chhang called it “a parody of justice.”225 One of the co-investigating judges’ colleagues, International Reserve Trial Chamber Judge Martin Koropkin, publicly attacked the

Donor

Japan United States Australia Cambodia European Union Germany United Kingdom Sweden France Norway UN Trust Fund Republic of Korea Finland Canada Denmark Netherlands Spain New Zealand India

No.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

69,801,721 30,813,220 26,758,728 — 11,752,675 11,849,949 11,104,555 11,544,588 8,825,858 8,025,071 — 4,150,000 3,253,733 2,487,538 2,048,991 1,800,909 1,078,729 867,814 —

International

TABLE 9.1 ECCC Financial Contributions as of October 31, 2017

32.82% 14.49% 12.58% 0.00% 5.53% 5.57% 5.22% 5.43% 4.15% 3.77% 0.00% 1.95% 1.53% 1.17% 0.96% 0.85% 0.51% 0.41% 0.00%

% 16,086,025 — 3,732,272 26,816,068 10,511,473 3,899,919 1,547,982 — 233,281 1,006,880 5,371,417 — 6,800 — — 9,388 — 160,260 1,050,000

National 21.56% 0.00% 5.00% 35.94% 14.09% 5.23% 2.07% 0.00% 0.31% 1.35% 7.20% 0.00% 0.01% 0.00% 0.00% 0.01% 0.00% 0.21% 1.41%

%

85,887,746 30,813,220 30,491,000 26,816,068 22,264,148 15,749,868 12,652,537 11,544,588 9,059,139 9,031,951 5,371,417 4,150,000 3,260,533 2,487,538 2,048,991 1,810,297 1,078,729 1,028,074 1,050,000

Total

29.90% 10.73% 10.61% 9.33% 7.75% 5.48% 4.40% 4.02% 3.15% 3.14% 1.87% 1.44% 1.13% 0.87% 0.71% 0.63% 0.38% 0.36% 0.37%

%

Austria Ireland Belgium Luxembourg Microsoft Open Society Institute Malaysia Liechtenstein Switzerland Thailand Qatar Chile David Scheffer Armenia Namibia Information Today Inc William Schabas Grant from UN to ECCC Loan from UN to ECCC Adjustment Interest earned

627,280 319,161 189,804 139,010 100,000 61,174 — 33,108 7,364 — 20,000 5,000 2,000 1,000 500 500 — — — (19,389) 5,009,104 $212,659,695

0.29% 0.15% 0.09% 0.07% 0.05% 0.03% 0.00% 0.02% 0.00% 0.00% 0.01% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% - 0.01% 2.36% 100.00%

Source: ECCC Financial Outlook as at 31 October 2017 Note: The ECCC source document has several numerical errors that are corrected in this version.

Total

20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

— 1,600 — 20,000 — — 50,000 — 20,235 24,331 20,000 15,000 1,000 — — — 100 3,255,000 780,000 — — $74,619,031

0.00% 0.00% 0.00% 0.03% 0.00% 0.00% 0.02% 0.00% 0.01% 0.01% 0.01% 0.01% 0.00% 0.00% 0.00% 0.00% 0.00% 1.53% 0.37% 0.00% 0.00% 100.00%

627,280 320,761 189,804 159,010 100,000 61,174 50,000 33,108 27,599 24,331 40,000 20,000 3,000 1,000 500 500 100 3,255,000 780,000 (19,389) 5,009,104 $287,278,726

0.22% 0.11% 0.07% 0.06% 0.03% 0.02% 0.02% 0.02% 0.01% 0.01% 0.02% 0.01% 0.00% 0.00% 0.00% 0.00% 0.00% 1.53% 0.37% - 0.01% 2.36% 100.00%

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proposal as “a judicial ultimatum” and “a denial of due process.”226 While the three defense teams welcomed the idea, the international co-prosecutor criticized it as “fundamentally unsound.”227 The UN and the Principal Donors Group denounced the notion as exceeding the authority of the coinvestigating judges.228 By August, the co-investigating judges published a lengthy response, sharply defending their authority to undertake such an action should it be required, while observing that a markedly improved funding situation since they had issued their request in May rendered action unnecessary at the present time.229 THE AMERICANS TO THE RESCUE

After the serial fiascoes of Blunk and Kasper-Ansermet, the UN faced a decision whether to nominate a new international co-investigating judge or to simply call it a day and pull the plug on the KRT. On the one hand, Case 002 seemed to be proceeding relatively well, and a UN decision to withdraw would gravely threaten not only that progress but also the entire investment the international community had made in the court. On the other hand, it was also clear that the Cambodian government was not playing the game by First World rules. But if the UN pulled out now, it might well face criticism for having selected two judges in a row who had proven unable to avoid controversy. Ultimately, it was decided that the best course of action would be to put forward new judicial candidates and ensure that they were of the highest quality. If the government continued to openly stymie any progress on 003 and 004, then the case for withdrawal would be easier to make to the key players among the donor community.230 For their part, Hun Sen and Sok An evidently concluded that the elephant was sizzling nicely on the grill, and there was no reason to further stoke the heat at this juncture. The new nominee for international coinvestigating judge was Mark Harmon, a highly experienced former U.S. federal prosecutor who had worked at the International Criminal Tribunal for Yugoslavia for more than seventeen years. Kasper-Ansermet had departed in May, and before the end of the next month, Cambodia’s Supreme Council of Magistracy had formally approved Harmon’s appointment.231 Olivier Beauvallet of France was appointed as the new international reserve co-investigating judge at the same time.232 It was a smooth start to what would turn out to be a remarkably productive tenure in office for Harmon.

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Judge Harmon spent several months studying the case files, analyzing the mess that had been left on his desk, and recruiting additional staff. One of the first things he decided was that he needed more lawyers, and lots of them—more lawyers for his own staff, more civil party lawyers, and more lawyers for the accused in Cases 003 and 004. In December, the Defense Support Section assigned Cambodian Ang Udom and American Michael Karnavas—the same team that had represented the now-deceased Ieng Sary—to defend Meas Muth, but the co-investigating judges refused to grant them access to the case file.233 The following May, Harmon arranged for the Cambodian lawyer Mam Luch and the Dutch attorney Goran Sluiter to represent Ta An in Case 004.234 Near the end of 2013, the Defense Support Section recruited Cambodian lawyers for the other two suspects in Case 004, Ta Tith and Im Chaem.235 In the interim, a second suspect in Case 003, Sous Met, had died from complications of diabetes in June 2013.236 Not until the next year would the defense teams for everyone in Case 004 be fully staffed. In February 2014 the Bosnian lawyer Suzana Tomanovic joined Cambodian So Mosseny on Ta Tith’s team,237 and then six weeks later British barrister John Jones joined Bit Seanglim on Im Chaem’s team.238 Just as it seemed the defense teams for the 003 and 004 suspects were at full strength, however, Judge Harmon pulled the rug from under two lawyers. Meas Muth’s team, Harmon ruled, had a conflict of interest because of their previous representation of Ieng Sary.239 Harmon said there was evidence that Sary had been Muth’s superior, and since the defense lawyers still owed a duty of loyalty to Sary, even after his death, it could negatively impact the zeal of their defense of Muth. Michael Karnavas maintained that it was a case of revenge by Harmon. “We thought he was certainly being dishonest and disingenuous with the disqualification. He just wanted to get rid of me, personally, because of our run-ins in The Hague, where I called him out on his sharp practices with the Appeals Chamber there, on one of the appeals, because he used to hide evidence.”240 The international coprosecutor sided with Harmon, arguing that Karnavas should be ineligible to defend Muth.241 After a year and a half of litigation, however, the PTC rescinded Harmon’s decision and ordered Udom and Karnavas to be reinstated as Muth’s defense team.242 Another set of problems plaguing Cases 003 and 004 concerned the question of civil parties and their representation. Judges Blunk and Bunleng had been unwilling to recognize any civil parties, so no question of

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recognizing civil party attorneys arose. Kasper-Ansermet, in turn, recognized a single civil party, but had been unable to have his attorneys recognized and given access to the case files so that they could properly represent their client. Harmon turned his attention to this issue shortly after a group of civil party attorneys published a press release complaining that procedural irregularities and errors of law were infringing on the rights of their clients.243 Scarcely more than a week later, Judge Harmon issued a decision recognizing the standing of civil party attorneys in Case 003 and giving them access to the case file.244 A bit more than a month after that, he did the same for Case 004, in both instances accompanied by a notice of disagreement between the co-investigating judges.245 Additional civil party attorneys were soon added to Case 004, and this aspect of the deeply confused cases finally seemed to have been legally regularized.246 Nonetheless, much confusion remained. Although defense attorneys were being assigned to the suspects in Cases 003 and 004, those attorneys still had not been given access to the case files, which would allow them to actively participate in the judicial investigation. In July 2013, Judge Harmon issued a decision declaring that Judge Kasper-Ansermet had abused his judicial discretion insofar as he had granted a suspect access to the case file, whereas according to the Internal Rules, only parties have access to the case file.247 Until a suspect is formally charged by the co-investigating judges, he or she is not a party to the case. This meant that until the suspects in Cases 003 and 004 were actually charged with a crime by one or both of the judges, their defense attorneys would have to work without knowing what was actually happening inside the judicial investigation. Ta An’s defense team forged ahead, finding things to do even without access to their client’s case file. On January 15, 2014, the Pre-Trial Chamber split along national-international lines on Ta An’s request for access to the file, effectively upholding the decision by Judge Harmon to deny that access.248 Because they did not have access to the case file, apparently Ta An’s lawyers were not notified of this decision. But on the same day, the lawyers filed another motion, arguing that Ta An did not fall within the definition of “most responsible” and therefore was outside the jurisdiction of the ECCC.249 The international co-investigating judge soon found a solution to the complaint from defense teams about their lack of access to the case file: he began formally charging the suspects. Judge Harmon started by issuing a

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summons for Im Chaem to appear before him; she ignored it.250 This process soon repeated itself with a second suspect, Meas Muth.251 In response to this defiance, two weeks later, Harmon issued an arrest warrant for Muth. When nothing happened, Harmon inquired with the judicial police and was told that they could not provide a “reliable estimate” on when the order might be executed.252 Harmon tried again in January 2015, issuing an “Order to Bring” Chaem before him. Again, there was no action from the responsible Cambodian police authorities.253 Notwithstanding the fact that these judicial orders were putatively confidential, Hun Sen appeared to be well informed about goings-on at the court. “Up to now,” he publicly complained, “the prosecution process goes too far as (they) expand the scope of the trial that almost makes people go back to the jungle.”254 “The scope—it just keeps expanding,” he fumed— though in fact, the scope of the cases had, if anything, contracted over the previous seven years with the death of various suspects and accused.255 Judge Harmon responded by charging Chaem and Muth in absentia with crimes against humanity.256 Apparently convinced that they were under Hun Sen’s protection, the two newly charged persons initially scoffed at the court. Muth affected defiance: “Now, I ask, who died? Where did I exterminate [people]?”257 Chaem was even more obstinate. “Whoever filed the charges against me, please go take them and put them in jail.”258 Soon, however, the stress began to show. Within days, Muth was hospitalized in Thailand. “A few days ago he was better,” Muth’s nephew told reporters, “but today he relapsed to his old sickness [due to being charged].”259 Im Chaem’s reaction was more spectacular. She sold her land in Anlong Veng, bought a car, and fled to her old homeland in Takeo province. Her husband, left behind, was furious. “I would not let my wife run away from me or escape to Thailand like she did during the [civil] war era. If she did, it would mean that she did [the crimes].”260 Questions soon arose about why the charged persons had not been taken into custody, as they had been in Cases 001 and 002. On March 6, the Cambodian Human Rights Action Committee called on the Royal Government to cease interfering in Cases 003 and 004.261 Their call was rapidly echoed by international human rights groups. OSJI and HRW both called the failure of the government to arrest the two accused persons a “mockery,” with HRW adding that the international community should cut off the court’s funding.262 The spokesman for the Ministry of Interior then

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poured fuel on the flames. “We will not arrest them,” declared General Khieu Sopheak. “It’s impossible—we don’t serve any order that may come from the ECCC.”263 And with that, everyone went into full-scale crisis management mode. The UN ordered Special Expert David Scheffer to attempt to tamp down the crisis. Meanwhile, an ECCC spokesman somewhat ineffectually tried to obfuscate everything. Insisting that the Ministry of Interior spokesman was merely expressing his personal views, Neth Pheaktra nonetheless allowed that the judicial police “think that for now, it is not an appropriate time to act as many people react to the remaining cases.”264 General Mao Chandara, head of the ECCC Security Commission, darkly suggested to reporters that the tribunal might really be some sinister “process to break up the nation.”265 Back at the Council of Ministers, David Scheffer and Sok An issued a joint statement affirming “their continuing full support for cooperation in the implementation of all provisions of the ECCC Law and the UN/Cambodia Agreement in order to discharge the judicial mandate and procedures of the Extraordinary Chambers in the Courts of Cambodia.”266 The charged persons remained at liberty, notwithstanding multiple judicial orders from the ECCC that they should be taken into custody. By June 2015, Judge Harmon determined that the time was ripe to strip the veil from the diplomatic charade. He published a series of previously confidential orders he had issued, including as-yet-unexecuted arrest warrants, and added some no-nonsense narration. “The International CIJ (Co-Investigating Judge) is satisfied that Meas Muth is not in hiding; that the Judicial Police know where Meas Muth resides; that the Judicial Police have the material means to execute the Warrant; and that they have failed to discharge their responsibilities as mandated by the ECCC Agreement, ECCC Law, and the Internal Rules.”267 General Chandara responded with a simple denial of the facts. “It does not mean that we have ignored the order to implement the arrest warrant,” he blithely asserted, “but our officials went down to study the social impact, the security and the opinion of the people.”268 Now, apparently, the willingness of Cambodian officials to execute judicial orders from the ECCC depended on “the opinion of the people.” In contrast, the UN-Cambodia agreement on the ECCC provided that “The Royal Government of Cambodia shall comply without undue delay with any request for assistance by the co-investigating judges, the coprosecutors and the Extraordinary Chambers or an order issued by any of

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them, including, but not limited to . . . arrest or detention of persons.”269 Following the failure of the SCM to confirm Laurent Kasper-Ansermet as international co-investigating judge, the affair of Judge Harmon’s unfulfilled arrest warrants marked the second time that the Royal Government stood in clear breach of its obligations under the UN-Cambodia agreement. Seemingly unperturbed, Judge Harmon found ways to proceed despite the government’s noncooperation. At the end of March 2015, he persuaded Ao An’s lawyers to bring him to court, where the judge informed him of the charges against him.270 In what would become a pattern, An was not detained. But Harmon’s tenure with the KRT would soon be at an end. On July 7, 2015, he announced that he had resigned, truthfully citing “strictly personal reasons.”271 A court spokesman noted that he had actually tendered his resignation two months before the public announcement.272 The new reserve international co-investigating judge, a German academic named Michael Bohlander, was promptly confirmed by the SCM as international co-investigating judge.273 Judge Bohlander hit the ground running and quickly ran into resistance. In September, the PTC’s national judges issued an opinion on a request to stay the arrest order against Meas Muth, arguing that arresting him would be “humiliating” and would affect “Meas Muth’s honour, dignity and rights substantially and irremediably.”274 They had not achieved a supermajority to quash the order, however, so the arrest order stood. Bohlander was not deterred. Within months of taking control of the complicated case files, following Judge Harmon’s example, he read to Muth in person a new set of charges, including genocide, crimes against humanity, and grave breaches of the Geneva Conventions, among other crimes.275 Bohlander also rescinded the arrest warrants against Muth, allowing him to remain free. He also arranged for Yim Tith, another suspect in Case 004, to appear before him to hear charges of genocide against the Khmer Krom, crimes against humanity, grave breaches of the Geneva Conventions, and other crimes.276 These developments in Cases 003 and 004 represented a significant milestone in KRT history, making December  2015 the first time all of the accused in those cases had formally become charged persons, with their defense teams now having access to the case files. The co-investigating judges ordered Chaem’s case to be severed from Case 004 and constituted as a separate case, denominated as Case 004/01.277 Intriguingly, both the national and international co-investigating judges

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signed the severance order. This represented virtually unprecedented cooperation between the national and international sides of OCIJ in the controversial cases. Speculation was rife that this meant the case against Im Chaem ultimately would be dismissed rather than sent to trial, because that outcome appeared to be the only acceptable conclusion for Judge You Bunleng.278 The co-investigating judges also requested the parties to submit briefs on the question of whether or not Chaem fell within the personal jurisdiction of the court—that is, whether she should be considered to be a “senior leader of Democratic Kampuchea” or among “those who were most responsible for the crimes” during Democratic Kampuchea.279 The parties, including the national co-prosecutor, duly submitted their views on this pivotal issue.280 As court monitor Heather Ryan of OSJI noted, “That the co-investigating judges asked that question means they have some doubts about that.”281 Initially, the cases against Meas Muth and Im Chaem seemed to be moving in tandem. On March 3, 2015, both had been charged in absentia by the international co-investigating judge,282 Chaem with homicide and crimes against humanity and Muth with homicide, crimes against humanity, and war crimes.283 Muth made his initial appearance before the international co-investigating judge on December 14, at which time the judge rescinded some of the charges and added new ones, including genocide.284 But four days later, the co-investigating judges surprised everyone by issuing a Rule 66 notification for Chaem, indicating that they believed the judicial investigation against her was complete.285 That order set in motion the endgame of the pretrial proceedings against her. The parties to the case then had fifteen days to request any further investigative actions they considered necessary.286 The most likely response to any such requests, if Cases 001 and 002 were any indication, would be for the co-investigating judges to dismiss those requests, with the dismissals then being appealed to the Pre-Trial Chamber. This process unfolded over the first half of 2016, after which the co-investigating judges returned the case file to OCP, which then had ninety days to prepare a Final Submission for the case.287 The OCP’s Final Submission on Im Chaem was filed on October 27, 2016, with International Co-Prosecutor Nicolas Koumjian arguing that she should be indicted and National Co-Prosecutor Chea

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Leang arguing she was not within the court’s jurisdiction and consequently charges against her should be dismissed.288 The Closing Order in Case 004/01 against Im Chaem was handed down on February 22, 2017.289 The co-investigating judges found that she was neither a “senior leader” of the Khmer Rouge nor one of those “most responsible” for the crimes of the Khmer Rouge regime, despite confirming that she held the formal positions the international co-prosecutor alleged she had held in the northwest, and that she was in control of large areas of the Northwest Zone’s Sector 5 during the massive purges that were carried out there.290 Unfortunately for outside observers, the reasoning of the judges in coming to this conclusion was entirely redacted from the public version of the Closing Order, so it remained a mystery how someone with such a large amount of blood on her hands could retain her impunity.291 Those reasons, however, did not actually accompany the Closing Order dismissing the charges against Chaem; they were delivered in a second order that was not filed until five months later, the public version of which had the reasoning completely redacted.292 Much later, a largely unredacted version of the Im Chaem Closing Order was released by the co-investigating judges. In this order, the judges noted that Chaem was “responsible for a number of atrocious crimes, but they do not suffice for her to cross the threshold of personal jurisdiction.”293 The judges laid out a summary of the evidence indicating they believed she was guilty of as many as 20,000 murders.294 This represented a remarkable contrast between former Judge Marcel Lemonde, who had said that someone accused of 1,000 murders should be brought to trial,295 and his successor, Judge Michael Bohlander, who decided that someone who killed up to 20,000 people was not adequately heinous to fall within the court’s jurisdiction. Of course, some investigators—myself included— believe that the death toll directly attributable to Chaem was higher by several multiples. Upon seeing those reasons, International Co-Prosecutor Koumjian appealed the Closing Order.296 The international co-prosecutor,297 Im Chaem’s defense,298 and civil party lead co-lawyers299 submitted appeal briefs to the PTC.300 On December 11, the civil party co-lawyers, the international co-prosecutor, and the deputy national co-prosecutor argued the appeals before the PTC judges, 301 and the next day, the defense for Im

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Chaem did the same. The PTC delivered its considerations on the appeals at the end of the second quarter of 2018.302 As was widely anticipated, the PTC split along national-international lines, observing that the chamber had “not assembled an affirmative vote of at least four judges for a decision on the merits” and, as provided by the rules, therefore the dismissal of the charges “shall stand.”303 “The National Judges of the Pre-Trial Chamber do not find that IM Chaem falls within the personal jurisdiction of the ECCC,” they wrote, although they did not give any reasons for their finding.304 In contrast, the international judges “consider that the Co-Investigating Judges failed to take into account the full magnitude of the gravity of the crimes alleged or charged against IM Chaem, or of her full role and responsibilities during the Democratic Kampuchea regime.”305 The international judges concluded by recommending that the charges against her should be pursued within the regular Cambodian judicial system.306 Judge Bohlander also continued to push forward on the case of Ao An. In March 2016, he revised the allegations, charging Ao An with genocide against the Chams as well as additional categories of crimes against humanity.307 By year’s end, the judge was satisfied that his investigation of Ao An was complete, and he issued the Rule 66 notification to the parties.308 On the same day, he ordered An’s case to be severed from Case 004 and constituted as a new file, Case 004/2.309 He subsequently decided to act on one or more investigative requests from the parties, and following completion of that work, he issued a second Rule 66 notification.310 The national and international co-prosecutors filed separate Final Submissions on Ao An in mid-August.311 Predictably, Chea Leang argued that he did not fall within the court’s jurisdiction and hence the case should be dismissed. Nicholas Koumjian argued that Ao An was both a “senior leader” and one of those “most responsible” for the crimes of the Khmer Rouge regime, in that as acting secretary of the Central Zone, deputy secretary of the Central Zone, and secretary of Sector 41, he oversaw twenty-five security offices and played a key role in the genocide against the Cham people, among other crimes. Equally predictably, and highlighting their agreement with the national co-prosecutor and “a majority of the judges involved,” Ao An’s defense team insisted that their client fell outside the tribunal’s jurisdiction.312 The co-investigating judges then did something unprecedented in the history of the ECCC: National Co-Investigating Judge Bunleng issued an

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order dismissing all charges against Ao An, 313 while International CoInvestigating Judge Bohlander simultaneously indicted Ao An and ordered him sent for trial.314 Judge Bohlander indicted Ao An for a wide range of crimes including genocide against the Cham people; the crimes against humanity of murder, extermination, enslavement, other inhumane acts, persecution on political and religious grounds, torture, and imprisonment; and murder in violation of the 1956 Cambodian penal code, at a wide variety of sites.315 The Pre-Trial Chamber estimated in late 2018 that appeals of the Ao An Closing Orders should be completed by the third quarter of 2019, assuming no delays due to funding or staffing issues.316 However, given the extraordinary situation of the diametrically opposed dueling Closing Orders issued by the co-investigating judges, the accuracy of that timetable certainly remained to be seen. The Pre-Trial Chamber held appeal hearings on the Ao An case in June 2019.317 National Co-Prosecutor Chea Leang argued that the court must dismiss the charges in respect of the “Government’s view” that no more cases should be brought to trial.318 Meanwhile, the case against Meas Muth was also moving forward. OCIJ’s international investigators intensified their fieldwork on Muth in 2016, and then on January 10, 2017, Bohlander delivered the Rule 66 notification.319 Though the details are redacted, at least one party requested additional investigations, and the international co-investigating judge accepted and acted upon an investigative request from one or more of the parties.320 Consequently, the co-investigating judges’ second and final Rule 66 notification was issued on July 25, 2017.321 Four months later, the national and international co-prosecutors filed competing Final Submissions in Case 003.322 The international co-prosecutor argued in his circa 950-page Final Submission that Meas Muth was the secretary of the Revolutionary Army of Kampuchea’s largest military unit, Division 164; was concurrently secretary of the Kampong Som Autonomous Sector and for a period also controlled Sector 505; became a member of the Central Committee of the Communist Party of Kampuchea; and rose to the position of deputy secretary of the Revolutionary Army of Kampuchea General Staff. These positions, CoProsecutor Koumjian argued, made him a “senior leader” of the Khmer Rouge, while the actions he took pursuant to those assignments also made him “most responsible” for the crimes committed during the Khmer Rouge regime. Therefore, according to Koumjian, the co-investigating judges should indict him and send him to trial on charges of genocide, crimes

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against humanity, and war crimes, among other offenses. In contrast, National Co-Prosecutor Chea Leang argued that Meas Muth was neither a senior leader nor most responsible for the crimes, and consequently the charges against him should be dismissed.323 International Co-Investigating Judge Bohlander noted in August 2017 that he was experiencing staffing retention issues with the lawyers assigned to the Meas Muth case,324 and consequently, it took considerably longer than usual to produce the Closing Order for Muth. Finally, on November 28, 2018, Judge Bohlander indicted Meas Muth on a whole raft of charges, including genocide against the Vietnamese, crimes against humanity, war crimes, and homicide.325 Bohlander did not agree with the international co-prosecutor that Muth was a senior leader—though he said that Muth “was very close to the senior leadership level”—but he found that the accused did fall into the “most responsible” prong of the court’s jurisdiction “based on the character and magnitude of his crimes.”326 Using “a very conservative calculation,” Bohlander found that Muth was responsible for the killings of a minimum of 1,200 Thai nationals and 3,276 Vietnamese nationals, as well as the purge of more than two thousand members of the RAK. In his Closing Order, Bohlander noted “the procedural uncertainty resulting from the opposing closing orders, as a result of which it is unclear under Internal Rule 77(13) whether the indictment will stand should there be no supermajority upon appeal in the PTC.”327 As in the case of Ao An, Judge Bunleng simultaneously issued a Closing Order dismissing all charges against Muth.328 Regarding the criminal allegations, Bunleng conceded that “serious crimes occurred,” but that in terms of personal jurisdiction, “the level of the accused’s participation shall be given decisive weight.”329 He argued that it was “doubtful” Muth was RAK Deputy Chief of Staff, and that he was “merely” an assistant to the Central Committee rather than a full member. Bunleng concluded that Muth did not have “active participation in policy-making” and was “neither proximate to nor active in the commission of crimes.”330 Consequently, the national co-investigating judge found that Meas Muth did not fall within the personal jurisdiction of the ECCC. Meanwhile, the PTC estimated that appeals against the Case 003 Closing Orders could be decided by the third quarter of 2019.331 This estimate assumed that there will be no further complications from funding shortages, translation delays, or staff turnover.

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But indeed, before 2018 was out, there were already translation delays in rendering the Closing Orders themselves into English and Khmer, delaying the filing of appeals by the parties. 2016 was a quiet year in the case of Yim Tith, the son-in-law of Ta Mok and former secretary of the Northwest Zone. To be sure, of all the 003/004 cases, Tith’s case was the one in which the co-investigating judges most fully succeeded in maintaining judicial confidentiality, or from the point of view of civil society critics, displayed the most comprehensive lack of transparency. Nonetheless, some of the action relating to his case began to seep into public view in 2017. The international co-prosecutor dropped the ball in July when, in appealing an investigative request he had filed in January332 and that the international co-investigating judge had rejected in May,333 he missed the filing deadline by nine days.334 Accordingly, the PTC rejected the appeal as inadmissible.335 In June  2017, the co-investigating judges informed the parties that they considered the judicial investigation of Yim Tith to be complete.336 The judges were particularly tight-lipped in the public version of their second Rule 66 notification, delivered in September 2017; seventeen of its twenty-eight paragraphs and all but two of twentysix footnotes were redacted in their entirety.337 Consequently, it is difficult to discern many facts regarding the status of the Yim Tith investigation endgame, other than what is revealed in the successive iterations of the court’s completion plan. According to the December 2017 version of that plan, the international co-prosecutor filed an appeal against a decision by the co-investigating judges on an investigative request.338 The Khmer translation of the international co-prosecutor’s Final Submission was filed on August 22, 2018, and the defense had three months after that date to file their response, with translation to follow.339 However, the co-investigating judges would find it a challenge to prepare their Closing Order(s) due to the complete loss of institutional memory for Case 004 in their office, given the resignation of the key staff members preparing the case and also the fact that the judges characterize the Tith case as the most complex of all the 003 and 004 cases.340 With the Pre-Trial Chamber projecting that any appeals in the Yim Tith case should be complete by the first quarter of 2020, in June 2019, the co-investigating judges issued a third set of contradictory Closing Orders.341 Having disposed of his docket in the Office of Co-Investigating Judges, Judge Bohlander announced his resignation.342 The cases of Yim

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FIGURE 9.3. OCP investigators at Wat Sangke, Battambang, March 2008

Tith, Ao An, and Meas Muth were now all in the hands of the Pre-Trial Chamber, with their ultimate outcome uncertain. There is an old saying that “justice delayed is justice denied.” There is no gainsaying the fact that justice in Cases 003 and 004 has been delayed. It took one year and twenty days to get from the first Introductory Submission to the Closing Order in Case 001, and three years and two months in Case 002, which was far more complex than 001. By comparison, for Im Chaem in Case 004/1, eight years and three months elapsed between the completion of the third Introductory Submission and the filing of the Closing Order.343 Chaem’s case was not remotely as complicated as 002. For the remainder of the surviving charged persons in Cases 003 and 004, it is more than twelve years and counting since the international co-prosecutor completed his preliminary investigation. The contrast is stark and telling, and what it tells is the determination of the Royal Government’s ruling Cambodian People’s Party to delay justice in those cases until it could be definitely denied.

Chapter Ten

EXTRAORDINARY JUSTICE

My central thesis in this work is that the law is at base an ideological enterprise, an ideology we can generically label as “legalism.” But—and this is crucial—the law is not a single, unified ideology. Rather, there are several different approaches to the concept of law, and we can see the animating principles underlying those different approaches in the way that war crimes tribunals are negotiated, operated, and concluded. I call these three approaches to law classical legalism, strategic legalism, and instrumental legalism. All three are long-standing, widespread, potent, and enduring. And the outcome of struggles among proponents of these different approaches determines much about how any particular war crimes tribunal ultimately unfolds. These varying legal ideologies are fundamentally distinguished by their respective orientations to the sphere of politics. In classical legalism, politics is seen as something separated from and indeed, inferior to law. Classical legalism concerns applying preexisting rules without any consideration of political questions. “Legislating from the bench,” that is, judges making new rules, is considered anathema. Proponents of classical legalism can be found in the halls of academia, in high courts, in institutions such as the United Nations Office of Legal Affairs, and in international human rights organizations such as Human Rights Watch and Amnesty International.

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In strategic legalism, the relationship between law and politics becomes more flexible and intertwined. Here, if an existing rule is inadequate to address a policy challenge, then the rule can be reinterpreted or an entirely new rule can be created in order to solve the problem. Seen in this way, strategic legalism is what transpires when classical legalism intersects with vagaries of policy making. Practitioners thus often can be found in ministries or other organs of state charged with implementing a government’s policies, among diplomats attempting to craft compromises necessary to forge agreement between sovereigns, or with bureaucrats and judges responsible for squaring the circle between abstract legal principles and the messy realities of everyday life. Instrumental legalism turns classical legalism on its head. Politics is prioritized over the rigid strictures of law, such that law becomes infinitely malleable in order to serve the interests of power, party, or class. If a particular rule is uncongenial to the desired policy outcome, then it is simply ignored. The most well-developed example of instrumental legalism is no doubt the former Soviet Union, but that is hardly the only place this orientation to the law has been harbored. Consequently, we tend to find adherents to instrumental legalism in communist and postcommunist political systems, as well as in authoritarian and totalitarian regimes of all stripes. THE PRT

The international team that came together to organize 1979’s People’s Revolutionary Tribunal (PRT) included Vietnam, the Soviet Union, and the German Democratic Republic, along with support from Cuba and Syria. All of these states were practitioners of instrumental legalism, and thus the ideological character of the legal exercise would hardly be in doubt. In a press conference two weeks before the PRT convened, Presiding Judge Keo Chanda revealed his view of the case. “It is clear that the Pol Pot-Ieng Sary clique committed the crime of genocide not only against a particular ethnic group or against a particular social stratum of the population, but against the Kampuchean people as a whole,” the judge declared.1 The eventual verdict also was not in doubt. Of course, the PRT was an in absentia trial, and thus there were no accused present from whom confessions could be extracted. But hewing closely to Vyshinsky’s Doctrine of Substantive Truth, confessions were

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required, and so the defense attorneys stepped forward at trial and confessed on behalf of their clients. “It is now clear to all that Pol Pot and Ieng Sary were criminally insane monsters carrying out a program the script of which was written elsewhere for them,” thundered Hope Stevens, an American attorney assigned to the defense team.2 Yuos Por, Cambodian cocounsel for the defense, informed the judge, “We must acknowledge the extreme seriousness of the crimes in terms of their character and their scope, and that the defendants were fully aware of their criminal acts and had the deliberate intention of committing them. These are undeniable facts.”3 Finally, Cambodian co-counsel Dith Munty concluded the defense presentation: “I have no dispute with Comrade Prosecutor regarding the criminal acts and criminal intention of the two accused.”4 Vyshinsky would have been proud. THE KRT

After the PRT, there were repeated attempts to cause the creation of a new, more robust judicial proceeding, including by the Cambodian Documentation Commission and the Cambodia Genocide Project in the 1980s, followed by the Campaign to Oppose the Return of the Khmer Rouge and the Cambodian Genocide Program in the early 1990s.5 These civil societydriven efforts were infused with the animating spirit of classical legalism, attempting as they did to induce states to recognize the facts of the case and apply existing international law to them. Western states—the most likely to respond to appeals to classical legalism—were, however, firmly in the mode of realpolitik when it came to the “Cambodia Problem,” and they ultimately refused to answer the calls from civil society actors through the civil war of the 1980s and into the international peace process of the early 1990s. Once the UN operation in Cambodia drew to a close in 1993, however, the calculus of key players, especially the United States, began to change. With the passage of the Cambodian Genocide Justice Act in early 1994, the United States adopted a new policy with regard to a possible Cambodian tribunal. Hun Sen’s consistent use of the genocide justice issue as a political negotiating tool is as good an illustration of the ethos underlying instrumental legalism as one is likely to find. The PRT, among its other purposes, was an attempt to decapitate the Khmer Rouge and lure second-in-command Nuon

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Chea to bring over the rest of the Khmer Rouge forces to join in a national unity government. A decade of civil war later, just before the negotiations for the Paris Peace Accords were to get under way, Hun Sen demanded that the Khmer Rouge leadership be brought before an international tribunal—a bold opening gambit in an international negotiation. With the 1994 Law on the Outlawing of the Khmer Rouge, Hun Sen sought to prohibit amnesty for senior leaders, a legal requirement he would ignore as soon as one of those senior leaders expressed an interest in defecting to the government. In 1995, both Hun Sen and his then-Co-Prime Minister, Norodom Ranariddh, publicly called for the establishment of an international tribunal for the Khmer Rouge. Shortly thereafter, Hun Sen demanded that Yale University’s Cambodian Genocide Program draft a Cambodian law to establish an international tribunal, only to suddenly pull the draft law from consideration in the Council of Ministers when it became apparent that a deal might be made to get Ieng Sary to defect in exchange for amnesty, along with the bulk of the remaining Khmer Rouge military forces. Hun Sen also later attempted to lure Khieu Samphan to defect by announcing that if Samphan were to arrest Pol Pot on behalf of the Royal Government, then Samphan would be exempted from prosecution at any tribunal that might be formed. Next, in 1997, Hun Sen and Ranariddh asked for UN assistance in establishing a tribunal, but just as the UN Group of Experts was about to deliver its recommendation to establish such a court, he rejected the incipient proposal because Nuon Chea and Khieu Samphan had surrendered to him and recognized his supremacy. In 2004, of course, Hun Sen overruled an order from Cambodia’s Prosecutor-General to investigate Nuon Chea, Khieu Samphan, and Ieng Sary. Consistently, then, across the decades, Hun Sen used law as a political instrument, as a cudgel of sorts, to pound on his adversaries. Hun Sen does the same thing beyond the ambit of war crimes, in the ordinary domestic political context, though that story is beyond the scope of the present treatment.6 With the U.S. government committed to the idea of genocide justice in Cambodia beginning in 1994 and U.S. Ambassador for War Crimes David Scheffer soon on the case, the United States pursued a wide range of initiatives aimed at getting Khmer Rouge war criminals into the dock. Scheffer tried to persuade the permanent members of the UN Security Council to agree to a Chapter VII tribunal, then a Chapter VI tribunal, then

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a treaty-based court to be agreed upon among an alliance of states, then national prosecutions somewhere, anywhere, based on universal jurisdiction, and finally a sort of U.S.-led “snatch and grab” of Pol Pot, so he could be stashed on a Pacific island until some way was found to get him into a courtroom. All of these efforts came to naught, but by then, the UN itself was beginning to show interest in the project. Once that ball got rolling, the full mix of legal ideologies was in play, with the UN pushing classical legalism solutions, the Cambodians wedded to their instrumental legalism approach, and the United States with strategic legalism initiatives attempting to mediate between the two. As other interested state and nonstate parties pitched in on various sides of the struggle, U.S. politicians and diplomats including Scheffer, Kent Wiedemann, John Kerry, and others proposed new rules and procedures one after another—a mixed tribunal, a special chamber, co-prosecutors, supermajority voting, a pretrial chamber, the inverted supermajority, and other mechanisms—attempting to bridge the divide between the ideological proclivities of the UN Office of Legal Affairs and the ruling Cambodian People’s Party. The UN Office of Legal Affairs (OLA) fought long and hard to preserve classical legalism’s separation of law from politics in the KRT negotiations. Secretary-General Kofi Annan and Under-Secretary-General Hans Corell were under no illusions as to what they were dealing with in their Cambodian interlocutors, struggling to ensure that any tribunal enjoying the benefits of the UN’s imprimatur be so structured that it was sure to stay on the straight and narrow path of classical legalism. The UN’s key benchmarks in this effort were a majority of international judges on the KRT bench, along with an independent international prosecutor. OLA’s only deviation from pure classical legalism came in 2004, when it briefly strayed into strategic legalism with the decision to create a new rule that characterized fundraising as a “legal” requirement. The Cambodians held firm and insisted that the tribunal should utilize Cambodia’s existing “procedures in force.” Those legal procedures, as we have seen, include a requirement for prosecutors to seek instructions from their political masters when dealing with “serious crimes.” No one would dispute that any Khmer Rouge tribunal would be addressing “serious crimes.” This was where Scheffer’s strategic legalism would come to the fore, forging “extraordinary” new legal rules for what would become the Extraordinary

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Chamber in the Courts of Cambodia. The notion of “supermajority” voting rules for the judicial chambers of the court, in particular, riled dyed-in-thewool partisans of classical legalism. Yet this compromise was the key achievement that allowed all of the parties to ultimately get to yes in the negotiations. However, it would not be enough to contain the determined instrumental legalism of the Cambodians. When the situation called for it, other great powers besides the United States also did not hesitate to engage in strategic legalism. In 2003, after Secretary-General Kofi Annan led the UN Secretariat in withdrawing from the negotiations for a Khmer Rouge tribunal, the United States, France, Japan, and others forced the UN not only to return to the negotiations but also to accept Cambodia’s terms for doing so. These maneuvers had the effect of alienating Sweden and other European states more firmly wedded to traditional classical legalism. When, after being forced to resume negotiations, Corell held to his classical legalism perspective, the United States, France, Japan, India, and Australia reproached Annan and Corell, insisting that they surrender to Cambodia’s ideological preferences. They had created a new rule—a resolution from the UN General Assembly— compelling the UN Secretariat to accommodate Cambodia’s desires, as well as Cambodia’s ideological orientation to the law. The ruling party leadership in Cambodia devoted extraordinary amounts of time and care to selecting the judges and other senior cadres who would be assigned to leadership positions at the tribunal. All major clans within the party had to be represented in order to ensure that each clan’s interests were properly protected in what they all viewed as a potentially risky undertaking. Most importantly, of course, senior national staff at the tribunal all had to be politically reliable. As a result, some of the country’s best legal talent did not make the cut, and some of those who did make the cut possessed less than stellar professional credentials. As former ECCC Director of Administration Sean Visoth put it, “The judiciary in Cambodia is not based on professionalism, not based on meritocracy, but on a system of patronage.”7 On the UN side, contrariwise, selection of senior personnel for the court was very much focused on legal professionalism. At the same time, however, there was also a certain element of patronage on the UN side insofar as those states with a keen interest in the ECCC—Britain, France, the Netherlands, Germany, the United States, Japan and so on—all saw their nationals receiving appointments to key positions at the court.

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OPERATIONS

As we have seen, the clash between classical legalism and instrumental legalism manifested itself very early on in the operational life of the KRT, surfacing during the initial judicial plenary at the beginning of July 2006. The Cambodians hoped that the newly established ECCC would simply pick up the moribund national cases of Kaing Guek Eav alias Duch and Chhit Chhoeun alias Ta Mok from where they lay languishing in the Phnom Penh Military Court, accept at face value the hopelessly incompetent judicial investigation the military investigating judges had conducted, and proceed from there. The nationals believed that this approach would protect national sovereignty—there’s that word again—and would also legitimize what had been, by almost any account, a sloppy and potentially illegal set of procedures thus far applied to the two prisoners. The new international judges, however, insisted on following civil law procedures strictly, and to them, that meant the co-investigating judges could not begin work on a case until the co-prosecutors had conducted a preliminary investigation and referred cases to them. For the internationals, this approach was essential to ensure that the co-prosecutors, in the first instance, and the co-investigating judges, in the second, had complete control over the cases that would come before the court. These dueling perspectives highlighted two very different approaches to the rule of law. The internationals were focused on procedure and process, while the nationals were focused on politics and product. This duel continued through the rule-making phase across the first year of the court.8 Concerned that the international co-prosecutor might expand the pool of accused beyond what was acceptable to the government, national leaders of the court exploded the November 2006 plenary, which had originally been envisioned to finalize and adopt the draft Internal Rules for the court, railing about purported violations of Cambodia’s sovereignty. The nationals then managed to throw various wrenches into the gears in an effort to slow down the process, which they did for more than six months. With an able assist from the president of the bar association, the government slow-walked the rules negotiation process, while David Scheffer attempted to intervene at the political level to devise some new rule that might resolve the impasse. The government went so far as to attempt to negotiate with the international co-prosecutor, when Director of Administration Sean Visoth approached me to discuss the question of personal

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jurisdiction. The assurances I was able to provide may have helped the government decide to allow the rules process to proceed. It was not entirely unexpected that Foreign Minister Hor Nam Hong was able to announce that the rules negotiations would be successful while the Rules Review Committee had not yet resolved all the outstanding issues. This was not the only time that the government knew the outcome of events in advance. On the very last day of the year-long rules negotiations, the perennial question of “procedures in force” versus “international standards” was still on the table. The KRT’s national judges attempted to compel the adoption of a rule that would legitimize nearly nine years of pretrial detention for Duch. Again, protecting the prerogatives of the sovereign was the guiding principle. However, the national judges of the Trial Chamber did rise to the occasion and exhibit a shining example of classical legalism in the Duch trial judgment when they ruled those long years of pretrial detention for Duch to be illegal. Unfortunately, that ruling was later overturned by the Supreme Court Chamber on a technicality. Though it all, the international judges of the court held fast to their classical legalism ideals. Once the Case 002 defense teams became engaged in the judicial process, new dimensions of instrumental legalism emerged. One should recall that the “rupture” strategy actually was not invented by Khieu Samphan’s famous attorney, Jacques Vergés, as Vergés might have liked for people to believe. In fact, rupture originated with instructions from Vladimir Lenin— who was also the father of the communist version of instrumental legalism— on how communist activists arrested by the state should approach their defense. Both the rupture strategy and instrumental legalism give primacy to politics over the law. Thus they arise from the same seed and share the same inspiration. They are, as it were, peas in a pod. It might be seen as somewhat paradoxical, then, that the Cambodian government and the Nuon Chea and Khieu Samphan defense teams should have been so at odds, given their common adherence to the same legal ideology. But then, as the saying goes, where you stand depends on where you sit. In the struggle over Cases 003 and 004, National Co-Prosecutor Chea Leang managed to remain largely within bounds of the Internal Rules in her efforts to impose the ruling party’s preferred outcome on the course of events. The national judges of the Pre-Trial Chamber did so as well, at least initially. International Co-Investigating Judge Marcel Lemonde dealt with the reluctance of his national counterpart to proceed on 003 and 004 by

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focusing on Case 002, at least until those investigations were completed, which left his investigators idle. Finally, shortly before he departed the court, he unilaterally launched investigations of 003 and 004, though that foray did not get far. One of the first judicial acts of Lemonde’s successor, Siegfried Blunk, was to order OCIJ’s international investigators to return from the field and focus on desk studies. Judge Blunk brought into play what court observers and insiders had long termed the “weakest link” theory: the supermajority rule would protect prosecutions against politically motivated interference, unless one of the international judges defected to the national view. By all indications, Blunk intended to cooperate with National Co-Investigating Judge You Bunleng to dismiss the cases against all five accused in 003 and 004 on the grounds that they did not fall within the personal jurisdiction of the court. Blunk thus had retreated to strategic legalism in his failed effort to resolve the deadlock over Cases 003 and 004. But his failure to manage his own staff doomed that gambit, as well as his tenure at the court. The classical legalism of International Reserve Co-Investigating Judge Laurent Kasper-Ansermet clashed strongly with the instrumental legalism of his national colleagues. In the face of Kasper-Ansermet’s zeal, You Bunleng and Pre-Trial Chamber President Prak Kimsan relied upon the ultimate resort of the instrumentalist: if the rules are inconvenient to the policy, simply ignore those rules. Thus did Judge Bunleng declare that Kasper-Ansermet had no standing to carry out judicial acts. For his part, Judge Kimsan unilaterally rejected submissions from Kasper-Ansermet, drawing the incredulity of Kimsan’s international colleagues on the PTC bench. The Supreme Council of the Magistracy’s refusal to approve KasperAnsermet’s appointment elicited a UN declaration that Cambodia was in breach of the UN-Cambodia agreement—yet another direct clash of instrumental and classical legalism. In the end, Kasper-Ansermet was simply trampled by his national colleagues, as he could not abide the way the nationals ran roughshod over the sanctity of the rules. Kasper-Ansermet’s successors as international coinvestigating judge, Mark Harmon and Michael Bohlander, proved themselves more agile in coping with the instrumentalist conduct of their national counterparts. Despite a second clear breach of the UN-Cambodia agreement when the Ministry of Interior refused to execute his arrest orders, Judge Harmon found other means within the rules to charge and investigate the suspects.

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With their combined efforts, Harmon and Bohlander succeeded in bringing the judicial investigations in 003 and 004 to a conclusion, and Judge Bohlander has issued Closing Orders for those accused. Now that Judge Bohlander has ordered Ao An, Meas Muth, and Yim Tith sent for trial, while Judge Bunleng has ordered charges against them dismissed, the court faces perhaps its most momentous crisis thus far. Prime Minister Hun Sen and his government have vowed for the better part of a decade that they will not allow any of these cases to go to trial. The measures they might be willing to take to prevent that from happening may well cause the UN to finally withdraw from the process, but however the endgame at the court plays out, the legacy of the ECCC already has been clearly defined by what has come before. AFTERMATH

Judicial operations are still under way at the KRT, so it is too soon to know the extent to which legal ideologies will continue to clash in the aftermath of the court, once the proceedings have been completed and the court is disbanded. The Cambodian authorities might decide to commute the life sentences thus far earned by three KRT convicts in hopes of further burnishing national reconciliation, in an action parallel to postwar West Germany’s determined efforts to free imprisoned Nuremberg convicts in the wake of the IMT. But that remains in the realm of speculation. Much less speculative, however, is that advocates of classical legalism will continue to criticize the KRT for shortcomings ranging from alleged corruption to political interference, while advocates of instrumental legalism— prominently including Cambodia’s ruling party and its partisans—will continue to hail the entire exercise as a “precious model” for future exercises in postconflict retributive justice.9 Meanwhile, advocates of strategic legalism will be able to congratulate themselves on having brought the process so far and having had at least some success in an enterprise that many insisted would be impossible from the beginning. It was the strategic legalists who were finally able to square the circle of the incommensurability problem and make East meet West, halting and uncomfortable though it was for many of those involved. Some observers have been harsh in their assessments of the court. Journalist Nate Thayer has denounced the KRT as a “21st century version of a

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Stalinist era political show trial.”10 Such extreme views fail to consider important nuances, such as the fact that Stalinist show trials never had strategic legalists attempting to forge an accommodation between classical legalists and instrumental legalists—they had only instrumental legalists. Moreover, some analysts of war crimes trials, such as Gerry Simpson, caution against the idea that a “show trial” is the antithesis of a war crimes trial in the mold of, say, the IMT. “Indeed, there are sometimes striking resemblances.”11 In both, there is sometimes an arbitrary quality to who is prosecuted and who is not, as suggested by the convoluted debates among the Allies about who should be brought before the IMT. Both, as the Nuon Chea defense would likely attest, also are “a complex ritual which produces and suppresses narrative and clarifies and obscures history.”12 The late Cherif Bassiouni, widely seen as the father of modern international criminal justice, also delivered a harsh critique of the ECCC in a 2010 speech that, while scathing, is perhaps more on point than Thayer’s evaluation. Referring to the ECCC as a “Potemkin tribunal,” he likened it to two large hamburger buns with scant meat between them. “Where’s the beef?” Bassiouni demanded.13 “How can anybody conceive of the Cambodia Tribunal, which will ultimately prosecute no more than five persons, all in their 80s,” Bassiouni went on, “to be a symbol of international criminal justice is really stretching it.”14 The real problem may be, however, that in fact the KRT indeed is a symbol of international criminal justice, but a symbol that reveals essential things about the reality of the law from which many dedicated to classical legalism would rather avert their eyes. This reality is that the law, in all of its ideological permutations, is suffused with politics. LEGACY

The “legacy” aspect of any internationalized tribunal is a complex and hotly contested matter, encompassing many issue areas and concerns. Will a given tribunal encourage domestic legal and judicial reform with a view to bolstering the rule of law and combating impunity? Will it strengthen the capacity of members of the domestic judiciary through skills transfer and training? What will become of the records and archives of the tribunal, and will the proceedings themselves, as well as the archives they generate, contribute to creating an objective and persuasive historical record of the crimes that gave rise to the court? There are also potential follow-on issues after

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the tribunal winds down, including possible pardons for those convicted, prosecutions of lower-level perpetrators in domestic courts, ongoing reparations issues, possible subsequent transitional justice activities such as a truth-telling mechanism, and the disposition of the physical assets of the tribunal. And finally, of course, there is the weighty question of outreach, public engagement, and the extent to which the tribunal contributes to national reconciliation. Attention to legacy issues at the ECCC began to develop in mid-2008 when International Co-Prosecutor Robert Petit’s staff persuaded him that this was a challenge that needed to be addressed earlier rather than later in the life of the court.15 Petit then invited Trudy Peterson to visit the court and discuss archival issues with the staff. Peterson is a former Archivist of the United States who went on to develop a specialty in the handling of archives following transitional justice exercises. She arrived at the ECCC on July  28, and the very next day, the KRT’s Office of Administration decided to create a Legacy Working Group. The Working Group carved out five areas of particular legacy interest—1) records, archives, and library; 2) human resource development; 3) physical infrastructure; 4) outreach; and 5) residual issues—and proceeded to develop plans to deal with those topics. This effort eventually evolved into a Legacy Advisory Group and a Legacy Secretariat.16 By 2011, however, a Yale University scholar studying the question of legacy at the ECCC concluded that there was no centralized action on legacy issues at the court and no coordination among the different organs of the court in their various legacy-related activities.17 Some international actors, such as the Office of the United Nations High Commissioner for Human Rights (OHCHR), take a relatively narrow view of legacy, focusing tightly on “a hybrid court’s lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity.”18 In addition to directly combating impunity by trying perpetrators of mass atrocity crimes, hybrid tribunals can strengthen the rule of law by contributing to legal and judicial reform in the society in question. Internationally assisted judicial exercises at courts like the KRT generally apply higher standards in areas such as witness protection, detention conditions, judicial ethics, translation and transcription practices, court security, and jurisprudence. Simply being exposed to and participating in the application of such standards can inspire national judicial personnel to

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transfer such best practices to their local jurisdictions. Indeed, Judge You Bunleng has said that he intends to apply case management procedures he observed at the KRT to his “day job” as president of the Appeals Court. Similarly, Nil Nonn, president of the KRT’s Trial Chamber, has noted how impressed he is with the fact that international judges include reasons for their decisions with their verdicts, and that he intends to integrate this into his future national judicial practice.19 National Co-Prosecutor Chea Leang, however, has cautioned that although she and her colleagues would like to bring the KRT’s higher standards into Cambodia’s domestic judicial system, “severe funding problems and human resource issues” render that aspiration problematic.20 While strengthening judicial capacity through skills transfer and training may seem at first glance to be an unmitigated positive, there lurks here a potential problem known as “negative legacy.” For the KRT, this has at least two dimensions, related to what is known as a tribunal’s “demonstration effect.” “If a court like the ECCC is unable to exercise judicial independence, for example, despite vast international support and presence, citizens may ask themselves how a regular Cambodian court can be expected to do so.”21 In other words, if even the UN could not force the Cambodian judicial system to conform to the strictures of classical legalism, then what hope do ordinary Cambodians have? Another dimension of “negative legacy” was noted by a longtime observer of the Cambodian judicial system, who argues that the system is fundamentally politicized and irredeemably corrupt, so the net effect of increasing the technical capacity of its judicial personnel will simply be to empower them to dress up politicized and corrupt verdicts so that they look nice, shiny, and professional.22 Thus capacity building only helps them become more efficient at manipulating justice to political ends. As of late 2018, the cumulative amount of material in the KRT’s case files exceeded one and a half million pages, not including thousands of audio and video files. A great deal of additional material exists in the files of the OCP and OCIJ that has not been placed in the case files. Only a fraction of the material in the case files has been admitted as evidence by the Trial Chamber. Curiously, of the evidence admitted at trial, almost none has been released to the public via the court’s website, or though any other means. Consequently, outside researchers have not been able to access the evidence that prosecutors have brought to bear in making their arguments before the

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court. This is most unfortunate, as the KRT archives contain extremely valuable historical information. As David Chandler, the dean of Cambodia historians, has noted, the KRT has accumulated “an enormous amount of documentary materials about the Khmer Rouge period, which would not have been available to ordinary scholars. It’s got material that wasn’t available at [the Documentation Center of Cambodia]. It’s got oral material that has expanded the whole documentary evidence about the Khmer Rouge.”23 International Co-Prosecutor Robert Petit repeatedly emphasized to his staff that we were not there to write history. Indeed, legal scholars agree that international criminal courts are generally not very good at writing history, in part because the law’s way of knowing is very different from a historian’s way of knowing.24 Thus it is important that the archives of the court, subject to certain privacy safeguards, should eventually be made available to historians and other researchers. Whether or not that will ever happen remains an open question.25 The Cambodian government has established a Legal Documentation Center intended to provide public access to the records of the tribunal. So far, however, it only provides access to Case 001 materials that are already publicly accessible on the court’s official website. That does not include the voluminous evidence presented in court during the Case 001 trial, nor the other materials in the case file that were not admitted in court, nor the additional materials in the files of KRT investigators that were not placed in the case files.26 Given the Cambodian government’s consistent record of opacity in matters of freedom of information and the sensitive nature of some of the information in the court’s files, there is ample reason to suspect that these records may never see the light of day. Such an outcome would constitute a cruel blemish on the tribunal’s legacy. Some of the work done at the court has had an immediate impact on Cambodian families. One example is a project initiated by OCP during their preliminary investigation of the S-21 security office, when OCP analysts were able to identify 12,273 specific individuals who were killed there. In March 2016, the OCIJ provided a revised analysis of the OCP S-21 victims list to the Trial Chamber, raising the total number of victims to 15,101.27 In the process of reviewing that work, the OCP discovered that OCIJ’s new analysis had overlooked an entire category of S-21 documents. When the OCP took that additional data into account, they concluded that the verified number of victims at S-21 was more than 18,000.28 The revised S-21

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prisoner list revealed a dramatically higher death toll than previously had been understood. It will undoubtedly help many more families to determine the fate of their missing loved ones. This kind of work by the KRT constitutes part of the court’s enduring legacy, and a significant contribution to the history of the Khmer Rouge regime. How KRT follow-on issues might be handled has yet to be determined. As I have noted, at one point there were discussions about using the ordinary Cambodian court system as a residual mechanism to handle Cases 003 and 004, and that possibility may remain, especially now that three accused face conflicting Closing Orders. The donors may have had enough of those cases, and such a maneuver would allow the government to dispose of the cases as it sees fit. As for potential pardons for any persons convicted by the ECCC, Article 11 of the UN-Cambodia agreement explicitly commits the Royal Government not to request an amnesty or pardon for any person investigated by the court or convicted of crimes by it.29 However, it is not clear that this provision would continue to have any force once the court has completed its mandate and UN participation ceases, so the government might feel free to make its own decisions in that regard, or with regard to other aspects of the KRT legacy. We may already have seen a foreshadowing of such discretion with respect to the ECCC’s decisions on reparations. As part of the reparations ordered by the Trial Chamber in their judgment on Case 002/01, in late 2017 a memorial sculpture was installed in front of the French embassy in Phnom Penh. In early January 2018, however, the municipality of Phnom Penh uprooted the sculpture and moved it to the Tuol Sleng Museum of Genocide, apparently without bothering to inform the court. The Documentation Center of Cambodia’s Youk Chhang suggested that this action is an ominous portent for the legacy of the ECCC. “If you can remove or replace part of a legal judgment, what is the impact? It is a major loss in terms of victims’ perceptions of the power of the judgment at the ECCC.”30 It remains to be seen if the government will be equally cavalier in the future about other aspects of the KRT’s judicial decisions. The question of whether or not there should be follow-on transitional justice activity in the wake of the KRT remains controversial. One option would be to pursue criminal cases against lower-level perpetrators in the ordinary courts following the completion of the KRT, though there does not appear to be any appetite on the part of the Cambodian government

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for such a course. Other postconflict states, such as Sierra Leone, have held both tribunals and truth commissions.31 Thun Saray, the founder of the Cambodian Human Rights and Development Organization (ADHOC), has long advocated that after the KRT has completed its work, a truth commission should be established in order to give the hands-on Khmer Rouge perpetrators a chance to apologize and reconcile with Cambodians.32 As of this writing, however, Thun Saray is in exile abroad following the jailing of several ADHOC staff members on widely questioned charges.33 The court’s physical plant itself—the buildings, equipment, vehicles, and so forth—is another legacy issue in and of itself. Some victim advocates have insisted that these materials should become part of reparations for civil parties. “We’re requesting the equipment of the [tribunal], as we know the Khmer Rouge court has a lot of materials, such as computers and vehicles,” said Theary Seng, a lawyer and Case 002 civil party. “This is a basic demand.”34 Others have voiced the hope that the court’s administration building could be dedicated to justice and memorial uses, but of course, it is located on a military base that the military will certainly wish to reclaim once the court has completed its mandate. Moreover, in 2008, when the court began to discuss legacy strategies internally, a group of senior Cambodian military officers was given a tour of the court, during which they took turns making claims on various categories of physical inventory, with one putting dibs on all the furniture, another on the desktop computers, and so forth. It was less legacy planning than a reconnaissance mission in advance of a looting raid. The episode put us in mind of the waning days of the UNTAC peacekeeping mission in 1993, when the UN’s ubiquitous fleet of Land Cruisers suddenly began to vanish en masse,35 or when troops loyal to Hun Sen stripped Pochentong International Airport bare of assets in the wake of the factional fighting in 1997.36 This is the likely fate of the ECCC’s physical assets. In contrast to the narrow, legalistic view taken by authorities such as OHCHR and ICTJ, others take a broader perspective on legacy, to include especially the impact of a tribunal on reconciliation in the postconflict society. The preamble to the UN-Cambodia agreement on the tribunal specifically takes note of “the legitimate concern of the Government and the people of Cambodia in the pursuit of justice and national reconciliation, stability, peace and security.”37 Measuring the impact of the KRT on Cambodia’s national reconciliation is a difficult undertaking. From an anecdotal perspective, I can recall that in the 1990s, the mere mention of

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the words “Khmer Rouge” had a tendency to terrify ordinary Cambodians, as if one had summoned demons from hell. By the time the KRT had been in operation for a few years, by contrast, it seemed like Cambodians from all walks of life were talking about the Khmer Rouge. It was as if the mere existence of the tribunal gave the nation permission to discuss a previously taboo topic. Much of this change was the result of outreach activities by the court and by NGOs. While there was never a specific line item in the ECCC budget dedicated to outreach, by various means there was a large amount of public engagement surrounding the KRT. The court’s Office of Public Affairs managed to organize numerous outreach projects that brought the KRT’s activities to a large swath of Cambodians. Nearly a quarter million people had attended hearings at the court by the end of September 2017, brought in by KRT-provided buses from across the country. Taking into account other activities organized by the court—study tours, video screenings, school lectures, public forums, and so on—more than half a million Cambodians participated in some form of official court outreach in connection with the KRT.38 Compared to other internationalized tribunals, this level of public engagement was unprecedented. Some donors—particularly Germany and the United States—provided extensive funding to NGOs to conduct outreach activities in conjunction with the KRT. Regular television programming, radio broadcasts, written publications, media coverage, websites, and road shows traveling throughout the country’s provinces brought news of the court’s activities, and opportunities for discussion and debate in local communities, to far-flung corners of Cambodia. This engagement may have had a substantial effect on Cambodians’ attitudes toward national reconciliation. A research project conducted in 2008 and 2010 by the University of California, Berkeley, Human Rights Center found that prior to the Duch trial, 67 percent of Cambodians surveyed said that they believed the ECCC would help promote national reconciliation. After the trial, that number rose to 81 percent.39 Again, anecdotally, I personally have witnessed a profound swing in public attitudes among Cambodians since the ECCC got under way. Teachers now felt free to discuss what happened in “the Pol Pot time” with their students, as new textbooks addressing the topic were integrated into primary and secondary school curricula nationwide for the first time. Parents finally began to open up to their children about their own experiences. Neighbors

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who perhaps had avoided the subject for decades now shared with one another their wrack and ruin during the Khmer Rouge regime. In neighborhoods where perpetrators still live in close proximity to their former victims, mutual understanding began to emerge as former Khmer Rouge cadres explained that they knew their lives were on the line if they did not follow the orders from their leaders, however horrible. Combined, all of this amounts to Cambodia’s social fabric gradually being knitted back together again. Far more than the number of criminal convictions secured, far more than any jurisprudence produced by the court, far more than the impunity that has been challenged, the contributions to reconciliation are the greatest legacy of the ECCC. While national reconciliation after a social rupture as severe as that suffered by Cambodia surely takes generations, that process has been turbocharged by the Khmer Rouge Tribunal. Those who have nurtured and supported the tribunal, despite its many flaws, should be proud of how much the KRT has done to advance reconciliation in Cambodia. CONCLUSIONS

The various strands of legal ideologies each have dedicated practitioners spread widely across the planet, within the governmental, intergovernmental, and nongovernmental spheres. When it is proposed that an internationalized court should be established, it is highly likely that legal practitioners representing all three ideologies will engage in a struggle to shape the outcome. The results will determine the precise contours and functioning of any particular exercise in transitional justice. At Nuremberg’s International Military Tribunal after World War II, the combination of classical and strategic legalism practiced by the United States, Britain, and France was sufficiently robust to largely overwhelm the instrumental legalism of the USSR. In contrast, the enthusiastic and unbridled instrumental legalism exhibited by Cambodia during the negotiations for and operations of the Khmer Rouge Tribunal, when combined with the strategic legalism seen in the efforts of the United States, France, and other major players, served to effectively outmaneuver the classical legalism emanating from the UN’s Office of Legal Affairs. The result was a court open to the influence of Cambodia’s executive, as is provided for by the nation’s “procedures in force.” The decision problem faced by Cambodia’s ruling party in determining how to manage the Khmer Rouge Tribunal was multidimensional, and from

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the perspective of Cambodia’s leaders, a matter of utmost importance. In the first instance, the challenge was to achieve an agreement with the UN that resulted in a tribunal structure that the ruling party could control. The respective legal ideologies of the principal actors in the establishment of the ECCC decisively shaped the outcome of the negotiations. The UN Office of Legal Affairs’s steadfast adherence to classical legalism severely limited the UN Secretariat’s room for political maneuver during the negotiations for the court. For the UN Secretariat, the whole thing was about the law, not about politics. Cambodia’s fidelity to instrumental legalism, in contrast, afforded a very wide range of political flexibility; for the Cambodians, it was all about politics, and never about the law. The result was that the Cambodians effectively ran circles around the UN’s negotiating teams at every turn. The willingness of many interested states, particularly the United States, to nudge the UN into ever more compromises sealed the deal in favor of the Cambodians, ultimately giving them a court over which they were confident they could exercise effective control. Without that assurance, it is highly unlikely Cambodia’s leaders ever would have agreed to convene the KRT. Many other issues would arise in the course of events. Early on in the life of the court, the ruling party became concerned that the independent international co-prosecutor might expand the circle of those to be prosecuted beyond the initially agreed five to ten suspects. The Cambodians consequently carried out a series of maneuvers that would slow-walk the progress of the court until they could better assess the degree of threat they were facing. Evidently, in this period, a decision also crystallized to the effect that only senior leaders should face jeopardy. That decision may have been inspired by the ruling party’s concern that their own political, military, or security subordinates might get the idea that they could be prosecuted for carrying out illegal orders. Since then, the determined opposition to the “most responsible” prong of personal jurisdiction by all Cambodian participants has meant that only international personnel have shown an interest in moving those cases forward.40 Preventing senior ruling party cadres from being called to testify before the court was essential for at least two reasons. If, for example, the late ruling party President Chea Sim were to have testified in the Trial Chamber that he was ordered by Pol Pot and Nuon Chea to hunt down Lon Nol officers and kill them, and to destroy Buddhism, and that he carried out those

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orders, then one of the founding fathers of the reborn Cambodia would have implicated himself in the crimes being tried before the ECCC. If, on the contrary, he were to have denied that any such orders were ever issued or to have testified that such orders indeed were issued but that he ignored them, in either case he would be buttressing the position of the defense. Such testimony would be a highly undesirable outcome from the perspective of the ruling party. There may also be a sense among the most senior leaders of the Cambodian People’s Party that they, like the king, should be “inviolable.” Thus it was imperative to avoid any possible threat to the dignity and reputation of core members of the party. It was not by accident that the Cambodian side demanded that the word “dignity” be incorporated into the ECCC’s foundational documents, and that this word was subsequently deployed by the national judges of the Pre-Trial Chamber in opposing the case against Meas Muth. They had no such qualms about the dignity of Nuon Chea or Khieu Samphan, but then again, Nuon Chea and Khieu Samphan were not generals in the Royal Army of Cambodia, as were Meas Muth and Sous Met in their twilight years. It is also undeniably the case that Cambodia’s leaders have more things to worry about that just genocide justice. Cambodia has only recently emerged from thirty catastrophic years of war, and in many respects, the social and political fabric of the country remains fragile. National reconciliation in Cambodia is still very much a work in progress. It is easy for an outside analyst to opine that the Khmer Rouge military is finished, and therefore there is no possibility of domestic instability if a few more Khmer Rouge leaders are brought before the court. For Cambodia’s leaders, however, ensuring that the hard-won gains of peace are preserved is literally a life-and-death matter, especially for any who might die if that peace should fail. Though Hun Sen might be fairly accused of hyperbole when he warns of civil war if three or four additional Khmer Rouge suspects were brought to trial, in fact, the problem of national reconciliation presents serious challenges far short of outright civil war. Rebuilding trust and a sense of national community after such an incredible series of disasters is a delicate and long-term undertaking. Compared to the arguably much less serious question of the liberty of any particular suspect who might be prosecuted, as well as—for an instrumental legalist—the question of fidelity to the letter of the law, this was an easy decision. Thus, limiting the number of prosecutions at the KRT became a top priority for the ruling party.

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The Cambodian powers that be have their own objectives in this process, and their own understanding of what is justice. These objectives and understandings are very different than those brought to the table by the international actors. Those differences are the central source of the ongoing tension surrounding the court. But though their ideological orientations to the law may well be incommensurable, these very different sets of hopes and expectations are not necessarily incompatible in practice. In a fundamental way, that has been and continues to be the most challenging aspect of the ECCC’s work: to find a way to harmonize these differing ideological approaches in a fashion that will in the end respect the desires of both sides, and deliver the goods that both wish to generate. The goods that both sides want are primarily symbolic in nature. The nationals want to generate symbols that will buttress their international political legitimacy and domestic historical legacy while preserving the hard-won gains of Hun Sen’s “win-win” policy, which succeeded in bringing the Thirty Years War to an end. The internationals want to generate symbols that will further develop and instantiate a transnational system of liberal democratic justice, and further advance the jurisprudence of international humanitarian law and international criminal law. If any party pursues its objectives with wanton disregard for the larger context and for the perspectives of other players, then the whole thing can quickly turn into a train wreck. So far, that has not happened at the ECCC, although several players have come very close, indeed. All concerned continue to feel their way along the twisting, boulder-strewn road, trying to find that middle path that will allow them to ultimately arrive at their preferred destinations. It will not be perfect. What in human affairs ever is? But it can be done. Above all, it requires patience, endurance, and understanding. Fortunately, so far, there have been key people on all sides who have those qualities. Whether that situation will endure through the final days of the Khmer Rouge Tribunal, however, remains to be seen. If there is no orderly, judicial resolution to the disputed Cases 003 and 004, the court’s legacy among devotees of classical and strategic legalism is liable to be severely tarnished, more so than it already has been. Such an outcome would also seriously damage the ruling party’s hope to emerge from the process with enhanced international legitimacy. But in either event, the legacy of the ECCC has provided an especially revealing new chapter in the history of modern experiments with extraordinary justice.

NOTES

INTRODUCTION 1. For example, as one newspaper reported, “critics of Mr. Trump quickly denounced what they called ‘banana republic’ politics of retribution, akin to autocratic nations where election losers are jailed by winners.” Peter Baker, “Playing Down Trump’s Effort to Get Clinton,” The New York Times, November 15, 2017. 2. Judith N. Shklar, Legalism: Laws, Morals, and Political Trials (Cambridge, MA: Harvard University Press, 1964), 167. 3. Shklar, Legalism, 168. 4. Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, NJ: Princeton University Press, 1961), 334. 5. Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 130. 6. Shklar, Legalism, 1. 7. Shklar, Legalism, 111. 8. A more prosaic example comes from an outsider. In the mid-1990s, a Cambodian Buddhist monk visited the United States and toured numerous states and several big cities, taking in many sights. At the end of his visit, he was asked by his guide what was the most amazing thing he had seen. The monk thought for a moment, and replied simply, “Stoplights. When the light changes, all the cars stop, without anyone ordering them or threatening them.” I am grateful to Bill Herod for this anecdote. 9. “Report to the President by Mr. Justice Jackson, June 6, 1945,” Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials: London, 1945 (Washington, DC: GPO, 1949). 10. Robert H. Jackson, “The Rule of Law Among Nations,” American Bar Association Journal 31 (June 1945): 290–94.

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11. Maguire, Law and War. 12. Maguire, Law and War, 9. 13. Edward Hallett Carr, The Twenty Years’ Crisis, 1919–1939: An Introduction to the Study of International Relations (New York: Harper and Row, 1964), 177. 14. John  N. Hazard, “Legal Policy in the Soviet Union,” in The Soviet Union in the 1980s, ed. Erik P. Hoffmann (New York: The Academy of Political Science, 1984), 57.

1. REVOLUTIONARY JUSTICE 1. D.G.E. Hall, A History of Southeast Asia, 4th ed. (New York: St. Martin’s Press, 1981), 119. 2. G. Coedès, The Indianized States of Southeast Asia, ed. Walter F. Vella, trans. Susan Brown Cowing. (Honolulu: University Press of Hawaii, 1968), 58; R. C. Majumdar, Kambuja-Desa or An Ancient Hindu Colony in Cambodia (Philadelphia: Institute for the Study of Human Issues, 1980), 37. 3. David Chandler, “Royally Sponsored Human Sacrifices in Nineteenth Century Cambodia,” in David Chandler, Facing the Cambodian Past (Chaing Mai: Silkworm Books, 1996), 119–135. In the context of the pre-Angkorian period, Vickery casts doubt about the practice. Michael Vickery, Society, Economy and Politics in Pre-Angkor Cambodia: The 7th–8th Century (Tokyo: The Centre for East Asian Cultural Studies for UNESCO, 1998), 247. 4. Roderic Broadhurst, Thierry Bouhours, and Brigette Bouhours, Violence and the Civilizing Process in Cambodia (Cambridge: Cambridge University Press, 2015). 5. David P. Chandler, A History of Cambodia, 2nd ed. (Chiang Mai: Silkworm Books, 1993), 155. 6. Hor Peng, “The Modern Era of Cambodian Constitutionalism,” in Introduction to Cambodian Law, ed. Hor Peng, Kong Phallack and Jorg Menzel (Phnom Penh: Konrad-Adenauer-Stiftung, 2012), 32–33. 7. Hor Peng, “The Modern Era of Cambodian Constitutionalism,” 33 n. 34. 8. Steve Heder, “Hun Sen and Genocide Trials in Cambodia,” in Cambodia Emerges from the Past: Eight Essays, ed. Judy Ledgerwood (DeKalb, IL: Southeast Asia Publications, 2002), 176–223. 9. Milton Osborne, Sihanouk: Prince of Light, Prince of Darkness (Chiang Mai: Silkworm Books, 1994), 157. 10. Osborne, Sihanouk, 176. 11. Henri VI, part 2, act IV, sc. 2, line 2379. 12. Standard accounts of the Khmer Rouge regime include Craig Etcheson, The Rise and Demise of Democratic Kampuchea (Boulder: Westview Press, 1984); Elizabeth Becker, When the War Was Over: The Voices of Cambodia’s Revolution and Its People (New York: Simon & Schuster, 1986); Ben Kiernan, The Pol Pot Regime: Race, Power and Genocide in Cambodia Under the Khmer Rouge, 1975–79 (New Haven: Yale University Press, 1996); Philip Short, Pol Pot: The History of a Nightmare (London: John Murray, 2004).

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13. Leonard Schapiro, The Communist Party of the Soviet Union, 2nd ed. (New York: Vintage, 1971), 208, citing V. I. Lenin, Collected Works, Vol. IX, 2nd/3rd ed. (Moscow: Partizdat TsK VKP, 1936), 94–95. 14. Schapiro, The Communist Party of the Soviet Union, 458–459, citing M.  V. Kozhevnikov, Istoriia sovetskogo suda, 1917–1956 gody (Moscow: Gosudarstvennoe isdatelastvo iuridicheskoi literatury, 1957), 277. 15. Andreas Bilinsky, “The Lawyer and Soviet Society,” in Man, State, and Society in the Soviet Union, ed. Joseph L. Nogee (New York: Praeger, 1972), 306. 16. Arkady Vaksberg, Stalin’s Prosecutor: The Life of Andrei Vyshinsky (New York: Grove Weidenfeld, 1991), 191. 17. Chapter 4, “The Great Terror,” in Marc Jansen and Nikita Petrov, Stalin’s Loyal Executioner: People’s Commissar Nicolai Ezhov 1895–1940 (Palo Alto, CA: Hoover Institution Press, 2002). 18. The Troikas were sometimes reduced to two-person boards. Robert Conquest, The Great Terror: A Reassessment (Oxford: Oxford University Press, 1990), 286. 19. “Khrushchev and the Politics of Reform,” in Ronald Grigor Suny, The Soviet Experiment: Russia, the USSR, and the Successor States (Oxford: Oxford University Press, 1998), 404–420. 20. Louise Shelley, Policing Soviet Society: The Evolution of State Control (London: Routledge, 1996), xiv. 21. See http://www.nyulawglobal.org /globalex /Kazakhstan.htm. 22. Inga Markovits, Justice in Luritz: Experiencing Socialist Law in East Germany (Princeton, NJ: Princeton University Press, 2010), 8. 23. Markovits, Justice in Luritz, 9. 24. Markovits, Justice in Luritz, 12. 25. Markovits, Justice in Luritz, 19. 26. Inga S. Markovits, “Civil Law in East Germany—Its Development and Relation to Soviet Legal History and Ideology,” Yale Law Journal 78, no. 1 (1968): 1–51. 27. Markovits, Justice in Luritz, 21. 28. Lung-Sheng Tao, “Politics and Law Enforcement in China: 1949–1970,” The American Journal of Comparative Law 22, no. 4 (Autumn 1974): 715; Stanley Lubman, “Form and Function in Chinese Criminal Processes,” Columbia Law Review 69, no. 4 (April 1969): 535–575. 29. Pitman B. Potter, From Leninist Discipline to Socialist Legalism: Peng Zhen on Law and Political Authority in the PRC (Stanford, CA: Stanford University Press, 2003). 30. Potter, From Leninist Discipline to Socialist Legalism, 110. 31. Henry McAleavy, “The People’s Courts in Communist China,” The American Journal of Comparative Law 11, no. 1 (Winter 1962): 52. 32. McAleavy, “The People’s Courts in Communist China,” 57–58. 33. Zou Keyuan, China’s Legal Reform: Towards the Rule of Law (Leiden: Martinus Nijhoff Publishers, 2006), 147. 34. Jianfu Chen, “A Criminal Justice System for a New Millennium?” in China’s Legal Reforms and Their Political Limits, ed. Eduard B. Vermeer and Ingrid d’Hooghe (London: Curzon, 2002), 78–79. 35. Chen, “A Criminal Justice System for a New Millennium?,” 82. 36. Chen, “A Criminal Justice System for a New Millennium?,” 82.

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37. Chen, “A Criminal Justice System for a New Millennium?,” 77. 38. Chen, “A Criminal Justice System for a New Millennium?,”, 78. 39. Hualing Fu, “Institutionalizing Criminal Process in China,” in The Development of the Chinese Legal System: Change and Challenges, ed. Guanghua Yu (New York: Routledge, 2011), 28. 40. George Ginsburgs, “Soviet Sources on the Law of North Vietnam,” Asian Survey 13, no. 7 (July 1973): 659–676. 41. Robert F. Turner, Vietnamese Communism: Its Origins and Development (Stanford, CA: Hoover Institution Press, 1975), 135. 42. Stuart  I. Rochester and Frederick  T. Kiley, Honor Bound: American Prisoners of War in Southeast Asia, 1961–1973 (Annapolis, MD: U.S. Naval Institute Press, 2007), 203. 43. Hamilton Desaussure, “The Laws of Air Warfare: Are There Any?” in The Vietnam War and International Law, vol. 4, ed. Richard A. Falk (Princeton, NJ: Princeton University Press, 1976), 319–320. 44. Rochester and Kiley, Honor Bound, 206. 45. Brian J.M. Quinn, “Vietnam’s Continuing Legal Reform: Gaining Control Over the Courts,” Asian-Pacific Law and Policy Journal 4, no. 2 (Spring 2003): 435. 46. Mark Sidel, “Vietnam: The Ambiguities of State-Directed Legal Reform,” in Asian Legal Systems: Law, Society and Pluralism in East Asia, ed. Poh-Ling Tan (Waltham, MA: Butterworths, 1997), 356–389. 47. Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building (New Haven: Yale University Press, 2003), 240. 48. “Decree Law on the Punishment of Betrayers of the Revolution,” No. 2 KC, May 5, 1980, trans. Secretariat of the Task Force, 2004. 49. Gottesman, Cambodia After the Khmer Rouge, 246. 50. Gottesman, Cambodia After the Khmer Rouge, 254–256. 51. Marie Alexandrine Martin, Cambodia: A Shattered Society (Oakland: University of California Press, 1994), 265. 52. Michael Vickery, Kampuchea: Politics, Economics and Society (Boulder, CO: Lynne Reinner, 1986), 44–45. 53. Jacques Bekaert, Cambodia Diary: Tales of a Divided Nation (Bangkok: White Lotus, 1997), 15. 54. Bekaert, Cambodia Diary, 28. 55. Gottesman, Cambodia After the Khmer Rouge, 243. 56. Kheang Un, “The Judicial System and Democratization in Post-Conflict Cambodia,” in Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict Society, ed. Joakim Öjendal and Mona Lilja (Copenhagen: NIAS Press, 2009), 74. 57. I am grateful to the reference librarians at the European Division of the Library of Congress for identifying these titles, and to Stan Starygin for assistance in translating them. 58. V. I. Lenin, S chego nachat?’ (Moscow: Progress, 1981). 59. V. I. Lenin, O zashchite sotsialisticheskogo otechestva (Moscow: Progress, 1981). 60. V. I. Lenin, O kooperatsii (Moscow: Progress, 1983). 61. V. I. Lenin, Ekonomika i politika v epokhu diktatury proletariata (Moscow: Progress, 1984). 62. V. I. Lenin, Groziashchaia katastrofa i kak s nei borot’sia (Moscow: Progress, 1985).

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63. V. I. Lenin, Sotsializm i voina. Otnoshenie RSDRP k voine (Moscow: Progress, 1986). 64. V. I. Lenin, Izbrannye proizvedeniia v 12 tomakh, tom 1 (Moscow: Progress, 1987). 65. Gottesman, Cambodia After the Khmer Rouge, 244. 66. Gottesman, Cambodia After the Khmer Rouge, 244–246. 67. Delores A. Donovan, “Cambodia: Building a Legal System from Scratch,” The International Lawyer 27, no. 2 (Summer 1993): 451. 68. Kelly McEvers and Phann Ana, “Disorder in the Court,” Cambodia Daily, March 4, 2000. 69. McEvers and Ana, “Disorder in the Court.” 70. See Jürgen Plöhn, “The Reform of University Education and Science in the New Länder Since 1990,” http://www.pueron.org /pueron /publikacii / hramat /jurgen .htm, accessed March 5, 2015. 71. Bekaert, Cambodia Diary, 61. 72. Bekaert, Cambodia Diary, 347. 73. State of Cambodia, “Law on Criminal Trial Procedures,” July 26, 1989, trans. STF, 2004. 74. State of Cambodia, “Law on Criminal Procedure,” March 8, 1993, trans. STF, 2004. 75. Supreme National Council, “Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period,” September 10, 1992, trans. STF, 2004 (hereinafter, “UNTAC Criminal Code”). 76. State of Cambodia, “Law on Criminal Procedure,” March 8, 1993, trans. STF, 2004. 77. Code of Criminal Procedure of the Kingdom of Cambodia, Khmer-English translation (Phnom Penh: Editions Angkor, 2008). 78. Criminal Code, Khmer-English translation, trans. Bunleng Cheung, May 2011. 79. Code of Criminal Procedure of the Kingdom of Cambodia, 14. 80. Code of Criminal Procedure of the Kingdom of Cambodia, 10. 81. Code of Criminal Procedure of the Kingdom of Cambodia, 10.

2. VICTOR’S JUSTICE 1. History of the Combat Operations Department 1945–2000 (Hanoi: People’s Army Publishing House, 2005). Thanks to Rich Arant for providing a translation of this document. 2. Merle L. Pribbenow, “A Tale of Five Generals: Vietnam’s Invasion of Cambodia,” The Journal of Military History 70, no. 2 (April 2006): 465. 3. “Der Aufenthalt einer Delegation des GStA der DDR in der SRV vom 9. Bis 24.4.1979.” I am grateful to Frank Selbmann for sharing this document with me. 4. Frank Selbmann, “Die Rolle der Generalstaatsanwaltschaft der DDR in Prozess gegen Pol Pot und Ieng Sary im Jahr 1979,” Neue Justiz 11 (2011): 454–460. 5. “Überlegungen zu weiteren Maßnahmen in Auswertung des Prozesses gegen Pol Pot und gegen Ieng Sary,” BArch DP 3/2228, Bl. 3. Translated by author. Thanks to Frank Selbmann for sharing this document. 6. From a Vietnamese memorandum cited in Steve Heder, “Hun Sen and Genocide Trials in Cambodia: International Impacts, Impunity and Justice,” in Cambodia Emerges from the Past: Eight Essays, ed. Judy Ledgerwood (DeKalb: Northern Illinois University Southeast Asia Publications, 2002).

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7. Statement of Mr. Chea Ponlok, in Howard J. DeNike, John Quigley, and Kenneth J. Robinson, eds., Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (Philadelphia: University of Pennsylvania Press, 2000), 111–113. 8. DeNike et al., eds., Genocide in Cambodia, 134–138. 9. Brian J.M. Quinn, “Vietnam’s Continuing Legal Reform: Gaining Control Over the Courts,” Asian-Pacific Law and Policy Journal 4, no. 2 (Spring 2003): 441. 10. Document 1.03, “Decree Law No. 25: Appointment of Members of the Tribunal,” in DeNike, et al., eds., Genocide in Cambodia, 50–51. 11. John Quigley, “Introduction,” in DeNike, et al., eds., Genocide in Cambodia, 8. 12. Document 1.02, “Decree Law No. 4: Appointment of Presiding Judge and Alternate,” in DeNike, et al., eds., Genocide in Cambodia, 49–50. 13. “List of Invitees,” in DeNike, et al., eds., Genocide in Cambodia, 60–62. 14. “List of Foreign Lawyers,” in DeNike, et al., eds., Genocide in Cambodia, 62–63. 15. Quigley, “Introduction” and “Statement of John Quigley,” in DeNike, et al., eds., Genocide in Cambodia, 518–519. 16. Document 1.04, “Decision No. 2: Prosecutor of the People’s Revolutionary Tribunal at Phnom Penh, Decision to Open an Investigation,” in DeNike, et al., eds., Genocide in Cambodia, 51–52. 17. “Decree Law No. 1: Establishment of People’s Revolutionary Tribunal,” in DeNike, et al., eds., Genocide in Cambodia, 45–47. 18. For more on the PRT, see chapter 2 in Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (New York: Praeger, 2005). 19. “Decree Law No. 1.” 20. Heder, “Hun Sen and Genocide Trials in Cambodia,” 191 n. 23; “Statement of Men Khoeun” in DeNike, et al., eds., Genocide in Cambodia, 219–221. 21. For more details on this policy, see “A Desperate Time,” in Etcheson, After the Killing Fields. 22. Hun Sen’s offer to Samphan was reported in “Cambodian strongman offers immunity to Khmer Rouge political leader,” AFP, June 18, 1998. 23. Private communication from Greg Stanton, August 28, 2002. 24. David Hawk, “CDC Chronology & Various Dates,” typescript, n.d. 25. Private communication from Greg Stanton, August 28, 2002. See also Greg Stanton, “The Cambodian Genocide and International Law,” in Genocide and Democracy in Cambodia: The Khmer Rouge, the United Nations, and the International Community, ed. Ben Kiernan (New Haven: Yale University Southeast Asian Studies, 1993), 141–161. 26. Hurst Hannum and David Hawk, “The Case Against the Standing Committee of the Communist Party of Kampuchea,” New York: Cambodian Documentation Commission, September 15, 1986, typescript. 27. For an account of the peace negotiations, see MacAlister Brown and Joseph J. Zasloff, Cambodia Confounds the Peacemakers, 1979–1998 (Ithaca: Cornell University Press, 1998). 28. “Appeal of the International Seminar on the Genocide Phenomenon and Prevention of Their Return Held in Phnom Penh, Cambodia, July 22nd 1989,” typescript. Thanks to Tom Fawthrop for providing this document. 29. Brown and Zasloff, Cambodia Confounds the Peacemakers, 54.

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30. Peter Raszelenberg and Peter Schier, The Cambodia Conflict: Search for a Settlement, 1979–1991 (Hamburg: Institute for Asian Affairs, 1995), 247. 31. Raszelenberg and Schier, The Cambodia Conflict, 251–252. 32. See chapter 18, “The 7th Party Congress and the Price We had to Pay for Normalizing Relations with China,” in Trang Quang Co: A Memoir. Tran Quang Co was Vietnam’s deputy foreign minister in 1991. He published these memoirs at http:// www.diendan.org /tai-lieu-hoi-ky-tran-quang-co. Thanks to Rich Arant for making an English translation available. 33. House Committee on Foreign Affairs, “Testimony of Mr. Michael Young, Deputy Legal Advisor, Department of State, before the Subcommittee on Asian and Pacific Affairs and the Subcommittee on International Economic Policy and Trade,” November 17, 1989. 34. House Committee on Foreign Affairs, “Testimony of Mr. Michael Young,” 123. 35. House Committee on Foreign Affairs, “Testimony of Mr. Michael Young,” 130–131. 36. House Committee on Foreign Affairs, “Testimony of Mr. Michael Young,” 189. 37. James Baker, “Remarks at the Paris Conference on Cambodia, Paris, France, October 23, 1991,” October 28, 1991. 38. Personal communication from Jeremy Stone, October 2, 2002. 39. The author became executive director of CORKR on January 14, 1992. 40. See S.2622, the Khmer Rouge Prosecution and Exclusion Act, April 10, 1992; and HR.5708, the Khmer Rouge Prosecution Act, July 28, 1992. 41. Senate Committee on Foreign Relations, S.1281, Title VI, The Khmer Rouge Prosecution and Exclusion Act, 160–161. 42. Author’s notes from Senate confirmation hearing for Charles Twining, April 13, 1994. 43. The Cambodian Genocide Justice Act, PL 103–236, April 30, 1994. 44. The Cambodian Genocide Justice Act. 45. “Law on the Outlawing of the Democratic Kampuchea Group,” Royal Kram No. 01. NS.94, 15 July 1994. 46. The author was the CGP program manager, and later acting director. 47. Some confusion arose from the similarities in the names of Greg Stanton’s Cambodia Genocide Project and Yale’s Cambodian Genocide Program (CGP), as well as between the CGP’s Documentation Center of Cambodia and David Hawk’s Cambodian Documentation Commission. 48. UNGA, Report of the UN Special Representative of the Secretary- General for Human Rights in Cambodia, A/49/635, November 3, 1994, 130. 49. See “Commentary Views Prosecution of Khmer Rouge,” FBIS-EAS-95-157, August 16, 1995, 67, a Khmer Rouge radio report accusing Yale University academics of war crimes. 50. “Speech by Samdech Krom Preah Norodom Ranariddh Made in Conjunction with the ‘International Conference on Striving for Justice: International Law in the Cambodian Context,’ ” Phnom Penh, August 21, 1995. 51. Author’s notes on Hun Sen’s address to the “International Conference on Striving for Justice: International Law in the Cambodian Context,” August 22, 1995. 52. The author was the principal drafter of that law. 53. Royal Pardon of Ieng Sary, NS/RKT/0996/72, September 14, 1996.

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54. First PM Ranariddh told an interviewer the amnesty “does not prevent any international tribunal to organize any trial to judge Mr. Pol Pot and to cite Mr. Ieng Sary, too.” Matthew Grainger, “Ranariddh: KR will be very tough,” Phnom Penh Post, Sept. 20, 1996. Second PM Hun Sen noted in a speech, “Amnesty for Ieng Sary has not hampered investigations into the crime of genocide and the process of [setting up an] international tribunal at all.” Hew Watkin, “King: PMs jumped the gun on Sary amnesty,” Phnom Penh Post, Sept. 20, 1996. In that same article, King Sihanouk said he supported trying Ieng Sary and other KR leaders at an international tribunal. 55. UN Commission on Human Rights Resolution 1997/49. 56. Personal communication from David Hawk, October 17, 2002. 57. Letter from First Prime Minister Norodom Ranariddh and Second Prime Minister Hun Sen to UN Secretary-General Kofi Annan, June 21, 1997. 58. “Communique of the Cabinet of H.R.H. Prince Norodom Ranariddh, First Prime Minister of the Royal Government of Cambodia,” No. RC/MP/045/97, New York, October 28, 1997. 59. Nate Thayer, “Brother Number Zero,” Far Eastern Economic Review, August 7, 1997. 60. UN General Assembly, Resolution 52/135, December 12, 1997. 61. “US urges international trial for Pol Pot,” Reuters, June 22, 1997. 62. See chapters 1–3 in David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2012). 63. David J. Scheffer, Ambassador-at-Large-Designate for War Crimes Issues, Statement at confirmation hearing before the Senate Foreign Relations Committee, July 15, 1997. 64. Mark Baker, “Pol Pot trapped, prince claims,” Sydney Morning Herald, June 21, 1997. 65. Author’s interview with David Scheffer, May 17, 2004. 66. Author’s interview with David Scheffer, May 17, 2004. 67. Craig Turner, “U.N. Examines How to Bring Pol Pot to Trial,” Los Angeles Times, June 24, 1997. 68. Moshe Gorali, “JAG: ‘Pinpoint prevention’ could end up in new International Court,” Ha’aretz, March 14, 2003; Robert H. Reid, “Try Pol Pot? U.N. and other member-states say not in my backyard,” AP, June 25, 1997. 69. Author’s interview with David Scheffer, May 17, 2004. 70. Author’s interview with David Scheffer, May 17, 2004. 71. Confidential memorandum of Hun Sen–Chuan Leekpai meeting, “Working Visit to Thailand of H.E. Second Prime Minister Hun Sen, May 6 & 7, 1998.” 72. UN, A/52/1007, August 7, 1998. 73. Transcript of “Press Conference by the United Nations Group of Experts,” November 17, 1998, Hotel Le Royal, Phnom Penh, and the author’s notes. 74. Author’s notes from field trip with the UN Group of Experts, November 18, 1998. 75. Author’s notes from meeting with the UN Group of Experts at the Documentation Center of Cambodia, November 16, 1998. 76. “Cambodia’s Rouge defectors say past best forgotten,” Reuters, June 21, 1998. 77. “Pol Pot’s widow quits Khmer Rouge,” AFP, September 21, 1998.

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78. Nate Thayer, “End of Story? Last Khmer Rouge defections don’t bring closure— yet,” Far Eastern Economic Review, December 17, 1998. 79. “Prime Minister Wants Khmer Rouge Tried in Cambodia,” AP, December 3, 1998. 80. Chris Fontaine, “Cambodia Premier Says No to Trial,” AP, December 28, 1998. 81. “Declaration of Samdech Hun Sen, Prime Minister of the Royal Government of Cambodia and Commander-in-Chief of the Cambodian National Armed Forces,” January 1, 1999. 82. “Cambodia may consult Tutu on Khmer trials,” AFP, January 17, 1999. 83. “TRC: ‘Tutu will help Cambodia,’ ” Daily Mail and Guardian (South Africa), January 18, 1999. 84. Chris Fontaine, “UN Envoy Rejects Cambodian Proposal,” AP, January 21, 1999. 85. Benjamin Low, “Cambodia’s Hun Sen condemns K. Rouge,” Reuters, February 5, 1999. 86. Greg Torode, “Beijing may veto genocide tribunal,” South China Morning Post, February 6, 1999. 87. UN, AS, General Assembly, Security Council, A/53/850, S/1999/231, 16 March 1999, Annex, Report of the Group of Experts for Cambodia established pursuant to General Assembly Resolution 52/135. 88. Teruaki Ueno, “Khmer Rouge trial might destabilise Cambodia-Hun Sen,” Reuters, February 24, 1999. 89. “Cambodian government tight lipped over UN’s Khmer Rouge recommendations,” AFP, March 2, 1999. 90. “Cambodian government tight lipped over UN’s Khmer Rouge recommendations.” 91. Letter from Hun Sen to Kofi Annan, March 3, 1999. 92. Indictment of Ung Choeun (aka Ta Mok), No. 019/99, Military Court, Phnom Penh, March 9, 1999. 93. Author’s notes from a conversation with a diplomat present at the March 12, 1999, meeting between Kofi Annan and Hor Nam Hong. 94. Author’s notes from a meeting with Hor Nam Hong, March 13, 1999. 95. Identical letters dated 15 March 1999 from the secretary-general to the president of the General Assembly and the president of the Security Council, A/53/850 and S/1999/231, March 16, 1999. 96. Letters from the Secretary-General to the President of the General Assembly and the President of the Security Council, March 16, 1999. 97. Letter from Hun Sen to Kofi Annan, March 25, 1999. 98. Letter from Hun Sen to Kofi Annan, March 25, 1999. 99. European Parliament, B4-04299. 100. Personal communication from Thomas Hammarberg, April 11, 1999; personal communication from Steve Heder, April 21, 1999. 101. Personal communication from Steve Heder, April 28, 1999. 102. “Hun Sen Softens Stance in Trial,” AP, April 7, 1999. 103. Author’s interview with David Scheffer, May 17, 2004. 104. Nic Dunlop, The Lost Executioner: A Story of the Khmer Rouge (London: Bloomsbury, 2005). 105. “Indictment of Duch,” No. 029/99, Military Court, Phnom Penh, May 10, 1999. 106. Chhay Sophal, “K.Rouge jailer ordered held pending charges,” Reuters, May 11, 1999.

366 3 . N E G O T I AT I N G J U S T I C E

3. NEGOTIATING JUSTICE 1. Personal communication from Steve Heder, April 29, 1999. 2. Author’s interview with David Scheffer, May 17, 2004. 3. “Statement to the press by Thomas Hammarberg,” May 20, 1999. 4. Author’s interview with David Scheffer, May 17, 2004. 5. Thomas Hammarberg, “UN Position on the ‘mixed’ tribunal,” July 8, 1999. 6. A copy of this briefing paper is on file with the author. 7. A copy of this briefing paper is on file with the author. 8. A UN official later privately explained this position to the author by saying, with reference to the presumed suspects, “Everyone knows they are guilty.” 9. Personal communication from Ouch Borith, July 30, 1999. 10. The UN briefing paper for the Security Council on the mixed tribunal concept is in the possession of the author. 11. Author’s interview with David Scheffer, May 17, 2004. 12. Puy Kea, “Hun Sen rejects foreign majority for Khmer Rouge trial,” Kyodo, August 17, 1999. 13. In addition to Sok An, the other members of the Task Force included Ouk Vithun (minister of justice) as deputy chair, Heng Vong Bunchat (supreme advisor to the government) as deputy chair, Om Yen Tieng (president of the Human Rights Commission) as deputy chair, Ly Vouch Leng (secretary of state for justice) as member, Suy Nou (secretary of state for justice) as member, Chan Tany (advisor to the prime minister) as member, Ang Vong Wattana (advisor to Deputy Prime Minister Sar Kheng) as member, and Leng Peng Long (president of the Expert Group of the Council of Jurists) as member; the secretariat of the Task Force included Sean Visoth as executive secretary, Tony Kranh as legal secretary, Helen Jarvis as advisor, Nau Soursdey as administrative assistant, and Ket Sophann as translator. As listed in “Decision to Establish Task Force,” No. 55, August 10, 1999. 14. “Draft Aide Memoire: Meeting between the Cambodian Task Force on the Khmer Rouge Tribunal and the visiting UN Delegation,” Council of Ministers, Phnom Penh, August 26, 1999. 15. “Draft Aide Memoire,” August 26, 1999. 16. A copy of the draft tribunal law presented by the Cambodian side at the August 26 meeting is on file with the author. 17. “Draft Aide Memoire,” August 26, 1999. 18. “Draft Aide Memoire,” August 26, 1999. 19. “Draft Aide Memoire,” August 26, 1999. 20. “Draft Aide Memoire,” August 26, 1999. 21. “Draft Aide Memoire,” August 26, 1999. 22. “Draft Aide Memoire,” August 26, 1999. 23. “Draft Aide Memoire,” August 26, 1999. 24. These documents are on file with the author, along with Assistant Secretary Zacklin’s cover letter. 25. UN “Comments on the Draft Law Concerning the Punishment of the Crime of Genocide and Crimes Against Humanity,” August 27, 1999. 26. UN “Comments on the Draft Law,” August 27, 1999.

367 3 . N E G O T I AT I N G J U S T I C E

27. UN draft “Law on the Establishment of a Tribunal for the Prosecution of Khmer Rouge Leaders Responsible for the Most Serious Violations of Human Rights,” August 27, 1999. 28. “Draft Aide Memoire: Second Meeting between the Cambodian Task Force on the Khmer Rouge Tribunal and the visiting UN Delegation,” Council of Ministers, Phnom Penh, August 28, 1999. 29. “Draft Aide Memoire,” August 28, 1999. 30. “Draft Aide Memoire,” August 28, 1999. 31. “Draft Aide Memoire,” August 28, 1999. 32. “Draft Aide Memoire,” August 28, 1999. 33. “Draft Aide Memoire,” August 28, 1999. 34. This document is on file with the author. 35. “Aide Memoire on the conversation between Hun Sen, Prime Minister of the Royal Government of Cambodia, and H.E. Kofi Annan, Secretary-General of the United Nations,” September 16, 1999 (unofficial translation). 36. “Aide Memoire,” September 16, 1999. 37. “Aide Memoire,” September 16, 1999. 38. “Aide Memoire,” September 16, 1999. 39. “Aide Memoire,” September 16, 1999. 40. Author’s interview with David Scheffer, May 17, 2004. 41. “Hun Sen rejects U.S. pressure on Khmer Rouge trial,” Kyodo, September 29, 1999. 42. Kay Johnson, “Allies to help with genocide tribunal,” South China Morning Post, September 24, 1999. 43. “Cambodian king supports U.N.-proposed tribunal,” Kyodo, October 15, 1999. 44. Confidential communication from a UN official, September 16, 1999. 45. Author’s interview with David Scheffer, May 17, 2004. 46. See http://www.havc.se/RuleofLaw.htm. Accessed January 27, 2018. 47. Author’s interview with David Scheffer, May 17, 2004. 48. Personal communication from Kent Wiedemann, September 30, 1999. 49. Author’s interview with David Scheffer, May 17, 2004. 50. “Hun Sen to push for Khmer Rouge trial by March 2000,” Kyodo, October 25, 1999. 51. Robert Birsel, “U.N. said obliged to ensure Khmer Rouge justice,” Reuters, October 27, 1999. 52. “U.N. chief Annan prods King Sihanouk on K. Rouge trial,” Kyodo, November 2, 1999. 53. Denis Gray, “Khmer Rouge Heads May Face Tribunal,” AP, November 4, 1999. 54. Gray, “Khmer Rouge Heads May Face Tribunal.” 55. Personal communication from Kent Wiedemann, October 19, 1999. 56. Author’s interview with David Scheffer, May 17, 2004. 57. Cambodian Second Draft “Law on the Establishment of Extraordinary Formation in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,” December 1999. 58. Ker Munthit, “Khmer Rouge Trial Plan Debated,” AP, Dec. 24, 1999. 59. “Cambodia delays decision on genocide trial to Jan. 6,” Kyodo, December 24, 1999. 60. OLA, “Non-Paper on Khmer Rouge Trial,” January 5, 2000.

368 3 . N E G O T I AT I N G J U S T I C E

61. OLA, “Non-Paper on Khmer Rouge Trial,” January 5, 2000. 62. OLA, “Non-Paper on Khmer Rouge Trial,” January 5, 2000. 63. Author’s interview with David Scheffer, May 21, 2004. 64. “Obuchi ends Cambodia visit with hope enhanced for genocide trial,” AFP, January 12, 2000. 65. Personal communication with a U.S. Foreign Service Officer, January 14, 2000. 66. Author’s interview with David Scheffer, May 21, 2004. 67. Author’s interview with David Scheffer, May 21, 2004. 68. Letter from Kofi Annan to Hun Sen, February 8, 2000; see also UN, “Press Briefing By United Nations Legal Counsel,” February 8, 2000. 69. Author’s interview with David Scheffer, May 21, 2004. 70. Letter from Hun Sen to Kofi Annan, February 10, 2000. 71. Letter from Hun Sen to Kofi Annan, February 10, 2000. 72. UN, Secretary- General. “Briefing to the Security Council on Visit to Southeast Asia,” February 29, 2000. 73. UN, Secretary- General. “Briefing to the Security Council on Visit to Southeast Asia,” February 29, 2000. 74. Author’s interview with David Scheffer, May 21, 2004. 75. UN, “Briefing to the Security Council.” 76. Author’s interview with David Scheffer, May 21, 2004. 77. Ker Munthit, “Progress Made in Khmer Rouge Talks,” AP, March 17, 2000. 78. Munthit, “Progress Made in Khmer Rouge Talks.” 79. Personal communication from a UN official, April 1, 2000. 80. Kay Johnson and Khieu Kola, “Progress made in genocide trial talks,” South China Morning Post, March 18, 2000. 81. “UN, Cambodia, Open Talks on Khmer Rouge Trial,” Reuters, March 17, 2000. 82. Letter from Sok An to Hans Corell, March 20, 2000. 83. Chhay Sophal, “U.N. hails ‘tremendous headway’ in Cambodia talks,” Reuters, March 18, 2000. 84. Chris Fontaine, “Cambodia Talks May be at Impasse,” AP, March 19, 2000. 85. Fontaine, “Cambodia Talks May be at Impasse.” 86. Personal communication from STF, March 22, 2000. 87. Chris Fontaine, “UN, Cambodia, Don’t Reach Agreement,” AP, March 22, 2000; the quote is from Hans Corell’s departure statement at the conclusion of the negotiating round. 88. “U.N. team leaves Cambodia without pact on Khmer Rouge trial,” Kyodo, March 22, 2000. 89. OLA, “UN Proposal on Pre-Trial Chamber of April 18, 2000.” 90. Author’s interview with David Scheffer, May 21, 2004. 91. “Hun Sen proposes judges to aid prosecutors in K. Rouge trial,” Kyodo, April 6, 2000. 92. Author’s interview with David Scheffer, May 21, 2004. 93. “Hun Sen Offers Options on Prosecuting Khmer Rouge,” Cambodia Daily, April 7, 2000. 94. “U.N., Cambodia, To Resolve Deadlock,” AP, April 12, 2000. 95. “Cambodia, U.N. Closer to Deal on Khmer Rouge— Officials,” AP, April 13, 2000.

369 3 . N E G O T I AT I N G J U S T I C E

96. UN, “A Pre-trial Chamber to Settle Differences Between the Co-investigating Judges or the Co-prosecutors,” April 18, 2000. 97. Author’s interview with David Scheffer, May 21, 2004. 98. Author’s interview with David Scheffer, May 21, 2004. 99. Author’s interview with David Scheffer, May 21, 2004. 100. Author’s interview with David Scheffer, May 21, 2004. 101. Draft versions of the documents generated by the UN team during the July 2000 mission are on file with the author. 102. Personal communication from a member of the negotiating teams, August 17, 2000. 103. “Cambodia and UN to finalise Khmer Rouge trial plan,” Reuters, June 29, 2000. 104. “U.N. legal team seeks agreement on Khmer Rouge trial,” Reuters, July 4, 2000. 105. “Cambodia vows swift action on Khmer Rouge trial,” Reuters, July 5, 2000. 106. “UN Warns Cambodia it won’t wait forever for Khmer Rouge trial,” AFP, July 4, 2000. 107. “Rights groups urge transparency in UN-Cambodia trial talks,” AFP, July 5, 2000. 108. Kay Johnson, “Khmer Rouge trials ‘on back burner,’ ” South China Morning Post, August 10, 2000. 109. Wiedemann quoted in Alex Devine and Lor Chandara, “No Time for KR Draft, Prince Says,” Cambodia Daily, October 17, 2000. 110. Personal communication from a foreign journalist in Cambodia, October 11, 2000. 111. Anette Marcher, “UN Accepts Flawed Tribunal for KR,” Phnom Penh Post, October 13–26, 2000. 112. Personal communication from a member of the National Assembly’s Legislative Commission, October 9, 2000. 113. Personal communications from Ambassador Kent Wiedemann, November 21 and 22, 2000. 114. Personal communication from an official of the Khmer Rouge Tribunal Task Force, November 30, 2000. 115. “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,” January 2, 2001. 116. “Cambodian leaders debate draft law for ‘killing fields’ tribunal,” AFP, December 29, 2000. 117. UN, Daily Press Briefing by the Office of the Spokesman for the Secretary-General, January 2, 2001. 118. Letter from Hans Corell to Sok An, January 9, 2001. 119. Letter from Hans Corell to Sok An, January 9, 2001. 120. “Decision” of the Constitutional Council, February 12, 2001. 121. “Decision” of the Constitutional Council, February 12, 2001. 122. OLA, “History of the Negotiations on the Khmer Rouge Tribunal Between the United Nations and Cambodia: A Chronology,” February 8, 2002. 123. “Cambodia Khmer Rouge trial law delayed further,” Reuters, June 5, 2001. 124. World Bank official Bonaventure Mbida-Essama said, “Yes, the donors are urging the government to move fast on this.” Kay Kimsong and Bill Myers, “Donor Meeting Raises Debate Over Reform,” Cambodia Daily, June 7, 2001.

370 3 . N E G O T I AT I N G J U S T I C E

125. Matt Reed and Kay Kimsong, “PM: KR Tribunal Could Begin in December,” Cambodia Daily, June 15, 2001. 126. “Hun Sen says government approval for trial legislation expected this week,” AFP, June 19, 2001. 127. Personal communication from Sim Sorya, June 22, 2001. 128. “Draft Law For Khmer Rouge Trial Amended; No Death Penalty,” AP, June 22, 2001. 129. UN, “Secretary-General Clarifies Position on Cambodian Government Responsibility for Trials of Former Khmer Rouge Leaders,” June 27, 2001. 130. “Cambodia PM Comments Raise Doubts On Khmer Rouge Tribunal,” AP, June 29, 2001. 131. “Cambodia PM Comments Raise Doubts On Khmer Rouge Tribunal.” 132. “Cambodian PM lashes out at UN over war crimes tribunal,” AFP, June 29, 2001. 133. “Cambodia’s Ranariddh adds to U.N. Khmer Rouge trial row,” Reuters, June 30, 2001.

4. JUSTICE DELAYED 1. “Vietnam hails Cambodian law paving way for Khmer Rouge trials,” AFP, August 16, 2001. 2. Chhay Sophal, “Khmer Rouge veteran in Thailand for heart checks,” Reuters, August 15, 2001. 3. Chhay Sophal, “Former Khmer Rouge leader denies role in genocide,” Reuters, August 17, 2001. 4. “Fearsome Khmer Rouge look ‘nervous’ as trial faces final hurdle,” AFP, August 23, 2001. 5. Thet Sambath and Bill Myers, “Ke Pauk Disavows KR Role, Says He Won’t Flee,” Cambodia Daily, September 13, 2001. 6. “Cambodia takes tanks from former Khmer Rouge,” Reuters, August 31, 2001. 7. “Pressure mounts for a genocide trial in Cambodia,” AFP, October 2, 2001. 8. “Cambodia: Invitation Sent  U.N. For Negotiation On Khmer Rouge Trials,” UNWire, October 10, 2001. 9. Personal communication from UN OLA, October 28, 2001. 10. “Hun Sen questions U.N. commitment to Khmer Rouge trial,” Kyodo, November 16, 2001. 11. Letter from Sok An to Hans Corell, November 23, 2001. 12. Personal communication from UN OLA, January 2, 2002; personal communication from a member of the STF, January 3, 2002. 13. Personal communication from UN OLA, October 28, 2001. 14. Personal communication from UN OLA, January 2, 2002. 15. Personal communication from UN OLA, January 2, 2002. 16. UN, “Highlights of the Noon Briefing by Fred Eckhard, Spokesman for the Secretary-General of the United Nations,” January 11, 2002. 17. “Cambodia denies talks on Khmer Rouge trials have stalled,” Reuters, January 16, 2002. 18. Letter from Sok An to Hans Corell, January 22, 2002.

371 4 . J U S T I C E D E L AY E D

19. UN, “Daily Press Briefing by the Office of the Spokesman for the SecretaryGeneral,” February 8, 2002. 20. UN, “Daily Press Briefing,” February 8, 2002. 21. UN, “Daily Press Briefing,” February 8, 2002. 22. UN, “Daily Press Briefing,” February 8, 2002. 23. UN, “Daily Press Briefing,” February 8, 2002. 24. Personal communication from the STF, February 10, 2002. 25. Ker Munthit, “Cambodia Urges U.N. to Reconsider,” AP, February 11, 2002. 26. “Statement from the Royal Government of Cambodia in Response to the Announcement of UN Pullout From Negotiations on Khmer Rouge Trial,” February 12, 2002. 27. “Statement from the Royal Government of Cambodia,” February 12, 2002. 28. “U.N. Envoy Still Sees Hope for Khmer War Tribunal,” Reuters, March 8, 2002. 29. “UN’s Annan defends his rejection of Cambodia court,” Reuters, March 13, 2002. 30. David Brunnstrom, “Door Open for UN at Khmer Rouge Trial,” Reuters, February 11, 2002; Gary Thomas, “Cambodian Leader Criticizes UN Over Tribunal,” Bangkok2, June 9, 2001. 31. “Hun Sen says UN has three months to negotiate on Khmer Rouge trial,” AFP, March 20, 2002. 32. “India offers Cambodia help for Khmer Rouge trial,” Reuters, April 9, 2002. 33. “Hun Sen accuses U.N. of blocking Khmer Rouge trial,” Kyodo, May 14, 2002. 34. “Hun Sen says negotiations with UN on KR trial continue,” Kyodo, June 20, 2002. 35. Hans Corell, “No justice for victims of the Khmer Rouge,” International Herald Tribune, June 19, 2002. 36. Personal communication from Greg Stanton, February 11, 2002. 37. “Cambodia Offers Olive Branch in Genocide Trial Spat,” Reuters, July 2, 2002. 38. “UN rejects Cambodia’s bid to revive Khmer Rouge trial,” Reuters, July 3, 2002. 39. Kevin Doyle, “Reported UN Snub on KR Shocks Gov’t,” Cambodia Daily, July 5, 2002. 40. “U.N. wants mandate before resuming talks on Khmer Rouge trial,” Kyodo, July 29, 2002. 41. UN, “Daily Press Briefing by the Office of the Spokesman for the SecretaryGeneral,” August 20, 2002. 42. “Cambodian PM sees door opening on UN-backed Khmer Rouge trial,” AFP, August 22, 2002. 43. “Hor Namhong: KR Discussion A Possibility,” Cambodia Daily, September 12, 2002. 44. Koh Santepheap, 35:4634, October 6, 2002, trans. The Mirror, 6:284, 29 September to 5 October 2002. 45. “Statement of Charles A. Ray, Ambassador-designate to Cambodia, Before the Senate Foreign Relations Committee,” October 1, 2002. 46. Quoted in DPI News Bulletin #2, October 10, 2002. 47. Personal communication from a UN official, October 13, 2002. 48. UNGA, France and Japan: draft resolution, Khmer Rouge trials, A/C.3/57/L.70, November 13, 2002. 49. Elizabeth Becker, “After 9-Month Break, U.N. Revives Plan for Khmer Rouge Trial,” New York Times, November 21, 2002.

372 4 . J U S T I C E D E L AY E D

50. “Cambodia urges U.N. to speed up passage of tribunal resolution,” AP, November 28, 2002. 51. UN, GA/SHC/3728, November 20, 2002. 52. UNGA, Khmer Rouge Trials, A/RES/57/228, December 18, 2002. 53. The following is based on the author’s conversations with UN and Cambodian officials in January 2003. 54. Thet Sambath and Matt McKinney, “Cabinet Chief: UN May Visit Next Month,” Cambodia Daily, January 23, 2003. 55. Tom Fawthrop, “Khmer Rouge: ‘Last Chance’ for Justice,” Asia Times Online, February 19, 2003. 56. UNGA, Report of the Secretary- General on Khmer Rouge Trials, A/57/769, 31 March 2003, 18. 57. Reach Sambath, “UN team arrives in Cambodia for ‘last chance’ talks on Khmer Rouge tribunal,” AFP, March 13, 2003. 58. “Cambodia: Draft agreed for KR genocide tribunal,” Bangkok Post, March 18, 2003. 59. Personal communication from Tom Fawthrop, March 18, 2003. 60. “Hans Corell interview,” BBC East Asia Today, March 17, 2003. 61. “UN and Cambodia reach draft agreement for prosecuting Khmer Rouge crimes,” UN News, March 17, 2003. 62. UNGA, Report of the Secretary- General on Khmer Rouge Trials, A/57/769, 31 March 2003. 63. “Statement of U.S. Senator Mitch McConnell, Senate Foreign Operations Appropriations Subcommittee,” April 30, 2003. 64. Secretary Colin L. Powell, “Testimony before the Senate Appropriations Subcommittee on Foreign Operations,” April 30, 2003. 65. UNGA, “Netherlands Statement on the Khmer Rouge Trials,” May 2, 2003. 66. UNGA, Third Committee, GA/SHC/3733, May 1, 2003. 67. Statement by H.E. Mr. Ouch Borith Ambassador, Permanent Representative of the Kingdom of Cambodia to the United Nations at the Third Committee of the 57th Session of the United Nations General Assembly, May 1, 2003. 68. Statement by H.E. Mr. Ouch Borith to the United Nations, May 1, 2003. 69. UNGA, “Netherlands Statement on the Khmer Rouge Trials,” May 2, 2003. 70. UNGA, “Swedish statement on Khmer Rouge Tribunal,” May 2, 2003. 71. UNGA, “Swedish statement on Khmer Rouge Tribunal,” May 2, 2003. 72. UNGA, Third Committee Approves Draft Resolution on Khmer Rouge Trials, GA/ SHC/3734, May 2, 2003. 73. UNGA, General Assembly Approves Draft Agreement Between UN, Cambodia on Khmer Rouge Trials, GA/10135, May 13, 2003. 74. “Cambodian cabinet approves Khmer Rouge trial draft,” AFP, March 28, 2003. 75. Puy Kea, “Cambodia, U.N. sign pact on Khmer Rouge trial,” Kyodo, June 6, 2003.

5. HYBRID JUSTICE 1. “Remarks by His Excellency Sok An Senior Minister,” June 6, 2003. 2. Lor Chandara, “PM Urges Assembly to Expedite KR Trial Deal,” Cambodia Daily, June 19, 2003.

373 5. HYBRID JUSTICE

3. “Cambodian parliament seen rubber stamping Khmer Rouge trial soon,” AFP, June 18, 2003. 4. Chandara, “PM Urges Assembly to Expedite KR Trial Deal.” 5. “Standing Committee of National Assembly Postpones Meeting about KR Agreement Because of Lack of Quorum,” Moneaksekar Khmer, 10:1984, June  28–29, 2003; trans. The Mirror, 7:322, June 22–28, 2003. 6. “CPP Stalls KR Trial Debate, Says Funcinpec,” Koh Santepheap Daily Online, July 2, 2003. 7. Ker Munthit, “Khmer Rouge tribunal agreement delayed by election campaigning,” AP, July 16, 2003. 8. See http://www.cambodia.gov.kh/krt/english/chrono.htm. 9. Daniel Lovering, “Australia donates US$1.2 million for Khmer Rouge tribunal,” AP, June 19, 2003. 10. Kevin Doyle, “US To Give $9.5 Million For Rights Work,” Cambodia Daily, October 6, 2003. 11. The author participated in this NGO delegation. 12. “Cambodia PM officially wins poll,” BBC, August 8, 2003. 13. “Cambodia, UN, to discuss Khmer Rouge trial,” Kyodo, November 13, 2003. 14. Porter Barron, “Draft Budget Lists $7 Million for KR Tribunal,” Cambodia Daily, August 7, 2003. 15. Phann Ana, “Gov’t Plans Differ for Chroy Changva Project,” Cambodia Daily, August 25, 2003. 16. Private communication from a participant in the Task Force’s October  20 conference. 17. Ker Munthit, “Cambodia proposes US$40 million budget for Khmer Rouge tribunal,” AP, November 11, 2003. 18. “Cambodia drafts budget, no genocide trial cash,” Reuters, November 28, 2003. 19. Cambodia’s 2004 national budget was $749 million, of which $20 million would constitute 2.6%, a considerable amount. See NGO Forum Budget Database at http://cambodianbudget.org / budget_database.php. 20. UNGA, Report of the Secretary-General on Khmer Rouge trials, A/58/617, December 3, 2003, §8. 21. Porter Barron, “UN Mission Hopeful About KR Trial in 2004,” Cambodia Daily, December 8, 2003. 22. “UN Team, Cambodia Agree on Issues Related to Establishment of Khmer Rouge Court,” UN News, December 17, 2003. 23. Helen Jarvis was Dean of the School of Information, Library, and Archive Studies at Australia’s University of New South Wales in the 1990s. In the interest of full transparency, I note that it was in that capacity that we became colleagues at Yale’s Cambodian Genocide Program. She subsequently became a senior aide to Deputy Prime Minister Sok An, and we were later colleagues once again at the ECCC. 24. Daniel Ten Kate, “UN Seeks Money for Tribunal,” Cambodia Daily, December 19, 2003. 25. Personal communications with members of both delegations. 26. William Barnes, “UN says Khmer Rouge leaders to stand trial soon,” Financial Times, December 19, 2003.

374 5. HYBRID JUSTICE

27. Kay Kimsong, “Former KR Commemorate Dead in Pailin,” Cambodia Daily, September 27, 2003. 28. Daniel Ten Kate, “Former KR President Asks for Legal Aid,” Cambodia Daily, December 18, 2003. 29. See Benson Samay’s advertisement in the classified section of Cambodia Daily, December 9, 2003. 30. Thet Sambath, “Nuon Chea Says He Will Not Hire a Lawyer,” Cambodia Daily, December 22, 2003. 31. Khieu Samphan, “Deuxième lettre ouverte à mes compatriotes,” December 29, 2003. 32. Ker Munthit, “Ex-Khmer Rouge Chief Acknowledges Genocide,” Washington Post, December 31, 2003. 33. “Jacques Vergès va défendre Khieu Samphan,” Le Figaro, February 10, 2004. 34. Miranda Leitsinger, “Khmer Rouge Leader Admits ‘Mistakes,’ ” AP, January 18, 2004. 35. UNGA, Report of the Secretary-General on Khmer Rouge trials, A/57/769, March 31, 2003. 36. The agreement upon which the SCSL was based was originally drafted by the UN for application in Cambodia. See Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (New York: Praeger, 2005), chapter 10, “Challenging the Culture of Impunity.” 37. Corell’s address in Freetown is at http://www.un.org /apps/sg /sgstats.asp?nid=813. 38. UNGA, Report of the Secretary- General on Khmer Rouge trials, A/57/769, 31 March 2003, § 56. 39. UNGA, Khmer Rouge trials: Programme budget implications of draft resolution A/C.3/57/L.90, A/C.3/57/L.91, April 30, 2003. 40. Ker Munthit, “Cambodia proposes $40 million budget for Khmer Rouge tribunal,” AP, November 11, 2003. 41. Joe Cochrane, “Cambodia: What Price Justice?” Newsweek, June 7, 2004. 42. This figure was proposed at the task force presentation to the Phnom Penh diplomatic corps on October 20, 2003. 43. Personal communication with UNAKRT personnel, December 10, 2003. 44. Personal communication with the STF, February 16, 2004. 45. Personal communication with Karsten Herrel, March 4, 2004. 46. Ker Munthit, “U.N. team decides on ‘realistic’ budget for Khmer Rouge tribunal,” AP, March 18, 2004. 47. Personal communication with a senior Japanese diplomat, March 22, 2004. 48. Minutes from “United Nations Assistance to the Khmer Rouge Trials, Meeting with Interested States,” April 15, 2004. 49. Minutes from “United Nations Assistance to the Khmer Rouge Trials, Meeting with Interested States.” 50. Personal communication from Stephen Bridges, May 24, 2004. 51. Personal communication from Steve Heder, May 22, 2004. 52. Personal communication from Toshiro Ozawa, May 24, 2004. 53. Personal communication from Mike Pan, April 9, 2004. 54. Personal communication from Charles Ray, May 17, 2004. 55. Personal communication from the Task Force, June 2, 2004.

375 5. HYBRID JUSTICE

56. Porter Barron and Yun Samean, “Donors Want KR Tribunal Budget Cut,” Cambodia Daily, June 4, 2004. 57. Richard Woodd, “Guillotine aimed at KR trial funds,” Phnom Penh Post, July 2–15, 2004. 58. See, for example, “Battambang: The Judge,” Frontline, October 2002, http://www .pbs.org /frontlineworld/stories/cambodia/diary04.html. 59. Personal communication with confidential informant, Phnom Penh, August 1, 2004. 60. Author’s interview with Helen Jarvis, Phnom Penh, July 4, 2015. 61. An unofficial translation of Prosecutor Raken’s reply to the petitioners, April 5, 2004. 62. Personal communication from Long Panhavuth, May 22, 2004. 63. General Prosecutor Raken’s order to the provincial prosecutors, April 9, 2004 (unofficial translation). 64. Personal communication from a confidential source, May 5, 2004. 65. Personal communication from a confidential source, May 5, 2004. 66. Yun Samean, “Prosecutors Ignore Order To Arrest KR,” Cambodia Daily, May 31, 2004. 67. Yun Samean and Thet Sambath, “Court Denies Report of KR Warrant,” Cambodia Daily, May 28, 2004. 68. Thet Sambath and Porter Barron, “KR Leader Lashes Out at His Critics,” Cambodia Daily, April 28, 2004. 69. Yun Samean, “Hun Sen Says Only UN Can Arrest KR,” Cambodia Daily, June 7, 2004. 70. Yun Samean, “Prosecutor Defends KR Leader Arrest Order,” Cambodia Daily, June 8, 2004. 71. Samean, “Prosecutor Defends KR Leader Arrest Order.” 72. “Law on the Outlawing of the Democratic Kampuchea Group,” 1994. 73. “Ratification of Khmer Rouge trial key issue for parliament,” Kyodo, July 6, 2004. 74. “Prince Ranariddh: National Assembly considers discussing draft of proposed law of Khmer Rouge Tribunal and joining World Trade Organisation,” Commercial News, July 16, 2004. 75. Personal communication with the STF, September 26, 2003. 76. Personal communication with David Scheffer, March 23, 2004. 77. “Adoption of the Khmer Rouge bill delayed by ‘technical’ problems,” Cambodge Soir, August 31, 2004 (trans. MC&D). 78. Personal communication from Helen Jarvis, August 26, 2004. 79. Personal communication from Steve Heder, August 26, 2004. 80. Author’s contemporaneous notes. 81. “Adoption of the Khmer Rouge bill delayed by ‘technical’ problems.” 82. Personal communication from Steve Heder, October 4, 2004. 83. Law on the Ratification of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, October 5, 2004. 84. Ek Madra, “Cambodia assembly ratifies Khmer Rouge trial pact,” Reuters, October 4, 2004.

376 5. HYBRID JUSTICE

85. Personal communication from Laura McGrew, October 5, 2004; “Khmer Rouge Tribunal Amendments Approved,” AP, October 5, 2004. 86. Royal Decree NS/RKM/1004/006, October 27, 2004. 87. Instrument of Ratification of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, Ministry of Foreign Affairs and International Cooperation, October 19, 2004. 88. Royal Decree NS/RKM/1004/004, October 19, 2004. 89. UNGA, “Report of the Secretary-General on the Khmer Rouge trials,” A/59/432/ Add.1, November 16, 2004. 90. UNGA, “Report of the Secretary-General on the Khmer Rouge trials,” A/59/432/ Add.1. 91. UNGA, “Report of the Secretary-General on the Khmer Rouge trials,” A/59/432/ Add.1*, November 29, 2004. 92. Personal communication from Gregory Stanton, December 6, 2004. 93. UNGA, “Report of the Secretary-General on the Khmer Rouge trials,” A/59/432, October 12, 2004. 94. UNGA, “Report of the Secretary-General on the Khmer Rouge trials,” A/59/432, 10. 95. Richard Woodd and Vong Sokheng, “US Senate moves to block KR trial funds,” Phnom Penh Post, October 8, 2004. 96. “Buttonhole donors on Khmer Rouge trial funding, say advocates,” DPA, November 30, 2004. 97. Personal communication with the STF, November 12, 2004. 98. “U.N., Cambodia to Thrash Out Khmer Rouge Trials,” Reuters, Dec. 8, 2004. 99. “UN and Cambodia agree on budget for Khmer Rouge trial,” AFP, December 10, 2004. 100. Personal communication from Steve Heder, December 10, 2004. 101. Sam Rith, “UN seeks money for KR trial,” Phnom Penh Post, January 14, 2005. 102. Rith, “UN seeks money for KR trial.” 103. Woodd and Sokheng, “US Senate moves to block KR trial funds.” 104. Personal communication from Toshiro Ozawa, December 24, 2004. 105. Yvonne Lee and Thet Sambath, “Japan May Give Half of KR Tribunal Funds,” Cambodia Daily, January 24, 2005. 106. Lee Berthiaume, “Japan Pledges $21.5 Million for Tribunal,” Cambodia Daily, February 10, 2005. 107. Lee Berthiaume and Thet Sambath, “UN Meeting to Appeal for KR Trial Funds,” Cambodia Daily, March 17, 2005. 108. “$1.64 Million Given by Canada for Khmer Rouge Trial,” Cambodia Daily, March 26, 2005. 109. UN, “Governments Pledge $38.48 Million for Khmer Rouge Trials in Cambodia,” L/3082, March 28, 2005. 110. “Annan says Khmer Rouge court on track after pledges,” AFP, March 29, 2005. 111. “Annan says Khmer Rouge court on track after pledges.” 112. Lee Berthiaume, “UN Falls Short $4.5 Million for KR Trial,” Cambodia Daily, March 30, 2005. 113. Lee Berthiaume, “Belgium Gives to Tribunal,” Cambodia Daily, April 12, 2005.

377 6. TRANSITIONAL JUSTICE

114. European Commission, “Commission announces support for Khmer Rouge tribunal,” EC05-170EN, April 29, 2005. 115. Letter from John Dauth, Permanent Representative of Australia, Michel Duclos, Chargé d’affairs of the Permanent Mission of France, and Kenzo Oshima, Permanent Representative of Japan, to Kofi Annan, April 15, 2005. 116. Note from Warren Sach to Mark Malloch Brown, April 20, 2005. 117. “Agreement between UN and Cambodia on Khmer Rouge Trials Takes Effect,” UN News, April 29, 2005. 118. Sok An, “Statement on the Entry into Force of the Agreement between Cambodia and the United Nations on the Khmer Rouge Trials on 29 April 2005,” May 3, 2005. 119. Sok An, “Statement on the Entry into Force of the Agreement between Cambodia and the United Nations.”

6. TRANSITIONAL JUSTICE 1. Phann Ana, “Gov’t Plans Differ for Chroy Changva Project,” Cambodia Daily, August 25, 2003. 2. Author’s notes from a UNAKRT team meeting in Phnom Penh on December 10, 2003. 3. Author’s notes from a meeting of the International NGO Working Group with the Task Force and the UNAKRT team at the Council of Ministers, Phnom Penh, March 19, 2004. 4. UN, Report of the Secretary-General on Khmer Rouge Trials, A/59/432, October 12, 2004. 5. “Creation of Security Guarantee Leadership Commission for the Former Khmer Rouge Leaders Trial Process,” RGC Decision # 13, March 24, 2004. 6. Janna Hamilton, “New venue proposed for KR Tribunal is superior, but fears of a military presence remain pervasive,” Phnom Penh Post, April 22, 2005. 7. Personal communication with an informant in Phnom Penh, December 9, 2004. 8. Personal communication with an informant in Phnom Penh, December 11, 2004. 9. “UN and Cambodia agree on budget for Khmer Rouge trial,” AFP, December 10, 2004. 10. Hamilton, “New venue proposed for KR Tribunal.” 11. Hamilton, “New venue proposed for KR Tribunal.” 12. James Goldston letter and memorandum to Nicolas Michel and Warren Sach, February 1, 2005. 13. Hamilton, “New venue proposed for KR Tribunal.” 14. Lee Berthiaume and Thet Sambath, “UN Approves Location for KR Tribunal,” Cambodia Daily, July 20, 2005. 15. Sean Visoth and Michelle Lee, “Joint Statement on the Establishment of the Office of Administration of the Extraordinary Chambers in the Courts of Cambodia,” February 9, 2006. 16. Visoth and Lee, “Joint Statement on the Establishment of the Office of Administration.” 17. STF presentation to the Phnom Penh diplomatic corps, October 20, 2003.

378 6. TRANSITIONAL JUSTICE

18. UNAKRT, “Report of the Technical Assessment Team on its visit to Cambodia 7 to 13 December 2003.” 19. Interview with Helen Jarvis, July 4, 2015, Phnom Penh. 20. Interview with Helen Jarvis, July 4, 2015, Phnom Penh. 21. “Preliminary Indicative Post Numbers, Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea,” January 13, 2005. 22. UNAKRT, “Extraordinary Chambers Staffing Requirements” [no date]. 23. It is difficult to identify more than six legally trained individuals who survived the Khmer Rouge regime, including Dith Munty, along with Chhour Leang Huot, Lueng Chhai, Uk Sary, and Heng Chi. See Evan Gottesman, Cambodia After the Khmer Rouge: Inside the Politics of Nation Building (New Haven, CT: Yale University Press, 2003), 243. Tom Fawthrop and Helen Jarvis report that seven lawyers survived the Khmer Rouge regime, adding Min Khin to the list. Tom Fawthrop and Helen Jarvis, Getting Away with Genocide? Elusive Justice and the Khmer Rouge Tribunal (London: Pluto Press, 2004), 41. 24. Van Roeun and Lee Berthiaume, “Prosecutor Asks Ministry To Fill Judiciary Posts,” Cambodia Daily, July 18, 2005. 25. Personal communication with informant, Phnom Penh, December 13, 2004. 26. Author’s interview with Sean Visoth, Phnom Penh, July 9, 2015. 27. Author’s interview with Sean Visoth, Phnom Penh, July 9, 2015. 28. Author’s interview with Sean Visoth, Phnom Penh, July 9, 2015. 29. This document is on file with the author. 30. This document is on file with the author. 31. “Decision No. 25: Appointment of Defense Lawyers,” in Howard J. DeNike, John Quigley, and Kenneth J. Robinson, eds., Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (Philadelphia: University of Pennsylvania Press, 2000), 59–60. 32. Witness Statement of Mr. Dith Munty, in DeNike, et al., Genocide in Cambodia, 134–138. 33. “International Standards for the Nomination of Judges to the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,” briefing paper prepared by the Working Group on the Extraordinary Chambers and the Open Society Justice Initiative, February 2004. 34. Witness Statement of Mr. Dith Munty. 35. “Majority of judges and prosecutors for Khmer Rouge Tribunal have bad reputations,” Moneaksekar Khmer, May 5, 2005 (trans. MC&D). 36. Lee Berthiaume and Park Chan Thul, “Possible Tribunal Judges Attend UN Training,” Cambodia Daily, May 4, 2005. 37. “US Position on Khmer Rouge Tribunal,” VOA News, May 19, 2005. 38. Lee Berthiaume, “US: Transparency Needed in Judge Selection,” Cambodia Daily, May 20, 2005. 39. Cambodian Human Rights Task Force, Press Release, April 25, 2005. 40. Janna Hamilton, “Selection of trial judges marred by corruption charges,” Phnom Penh Post, May 6, 2005.

379 6. TRANSITIONAL JUSTICE

41. Cambodian Human Rights Action Committee, Press Release, “Judge Selection for KRT,” August 24, 2005. 42. Cambodian Human Rights Action Committee, Press Release, November 25, 2005. 43. Samantha Melamed, “Criteria for KR Judge Selection Still Unreleased,” Cambodia Daily, November 28, 2005. 44. Open Society Justice Initiative, “Issues of Priority Concerning the Extraordinary Chambers,” August 8, 2005. 45. Open Society Justice Initiative, “Issues of Priority Concerning the Extraordinary Chambers.” 46. Lee Berthiaume and Pin Sisovann, “Rights Group Raps Cambodia’s Judicial System,” Cambodia Daily, May 27, 2005. 47. This account is based on a series of candidate lists leaked from the SCM in April and May 2006, as well as Sok An’s March 23, 2006, memorandum to Hun Sen on finalists for national ECCC posts. 48. This is based on biographies prepared by the NGO Working Group on the Khmer Rouge Tribunal. 49. Prak Chan Thul, “KR Trial Will Redeem Judges: Spokesman,” Cambodia Daily, May 6, 2006. 50. Whitney Kvasager and Prak Chan Thul, “ECCC Reports Progress; Mum On Criticism,” Cambodia Daily, May 11, 2006. 51. Kvasager and Thul, “ECCC Reports Progress.” 52. Author’s notes from meeting with Japanese DCM, Phnom Penh, March 22, 2004. 53. U.S. Embassy Phnom Penh, Cable: “KRT Judges Named: The Good, the Bad, and the Ugly,” May 6, 2006. 54. Author’s notes from meeting with Stephen Bridges, Phnom Penh, March 23, 2004. 55. Author’s interview with Sean Visoth. 56. “KRT Judges Named.” 57. Author’s notes from meeting with Stephen Bridges. 58. “Britain to provide a judge for Khmer Rouge trial,” Kyodo, December 13, 2000. 59. Personal communication with Toshiro Ozawa, December 24, 2004. 60. Hisane Masaki, “Japan offers judge for Khmer Rouge trial,” Japan Times, November 3, 2001. 61. “Swiss Government Shows a lot of Aid for Cambodia,” Kampuchea Thmey, May 22, 2004. 62. Personal note from OSJI, July 14, 2005. 63. Report of the Secretary- General on Khmer Rouge trials, A/60/565, 25 November 2005. 64. “China, genocide mastermind, to be in charge of Khmer Rouge Trial,” Sralanh Khmer, August 29, 2005. 65. Preah Reach Kret, NS/RKT/1105/466, 12 November 2005. 66. Author’s interview with Sean Visoth. 67. Author’s notes from meeting with Om Yen Tieng, Phnom Penh, September 9, 2005. 68. Author’s interview with Helen Jarvis, Phnom Penh, July 4, 2015. 69. “Sok An meets Japanese ambassador to discuss developments on Khmer Rouge Tribunal,” Kampuchea Thmey, September 15, 2005 (trans. MC&D). 70. Author’s interview with Sean Visoth.

380 6. TRANSITIONAL JUSTICE

71. Preah Reach Kret, NS/RKT/1105/466, 12 November 2005. 72. Samantha Melamed and Thet Sambath, “Chief, Potential Judges Named for KR Tribunal,” Cambodia Daily, November 25, 2005. 73. Letter from Nicolas Michel to UN Missions, June 20, 2005. 74. UN, Highlights of the Spokesman’s Noon Briefing by Stephane Dujarric, November 23, 2005. 75. “UN Moves Ahead with Cambodian Trials Court for Khmer Rouge Leaders,” UN News, November 24, 2005. 76. Samantha Melamed and Thet Sambath, “Chief, Potential Judges Named for KR Tribunal,” Cambodia Daily, November 25, 2005. 77. The author is aware of at least five applicants who did not appear on the short list. 78. Samantha Melamed and Thet Sambath, “Chief, Potential Judges Named for KR Tribunal,” Cambodia Daily, November 25, 2005. 79. UNAKRT Website, accessed December 1, 2005. 80. “Annan nominates international judges for Cambodia’s Khmer Rouge trial,” UN News, March 8, 2006. 81. “Judges and Prosecutors to the KRT decided by Supreme Council of the Magistracy,” Confidential, May 4, 2006. 82. Preah Reach Kret, No. NS/RKT/0506/214, May 7, 2006. 83. “Judges ready for Khmer Rouge trial,” Reuters, July 3, 2006; “Judges sworn in for Khmer Rouge,” BBC News, July 3, 2006. 84. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, June 6, 2003, Arts. 17(b) and 17(e). 85. Agreement between the United Nations and the Royal Government of Cambodia, June 6, 2003, Art. 14. 86. Agreement between the United Nations and the Royal Government of Cambodia, June 6, 2003, Art. 17(b). 87. Supplemental Agreement between the United Nations and the Royal Government of Cambodia Ancillary to the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea regarding Utilities, Facilities and Services, March 14, 2006. 88. Letter from Warren Sach to Sok An, dated ** December 2005. [The exact date of this letter is obscured on the copy in the possession of the author.] 89. UN, “UN and Cambodia Ink Agreement on Khmer Rouge Trials,” March 14, 2006. 90. Supplemental Agreement between the United Nations and the Royal Government of Cambodia Ancillary to the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea regarding Safety and Security Arrangements, March 14, 2006. 91. Note from Ralph Zacklin to Warren Sach, December 27, 2005. 92. “UN and Cambodia Ink Agreement on Khmer Rouge Trials.” 93. “Cambodia, UN sign supplementary agreements for special court,” Xinhua, March 15, 2006. 94. UNGA, Report of the Secretary- General on Khmer Rouge trials, A/57/769, March 31, 2003, ¶ 58.

381 6. TRANSITIONAL JUSTICE

95. UNGA, Report of the Secretary-General on Khmer Rouge trials, A/59/432, October 12, 2004, ¶ 29. 96. UNGA, Report of the Secretary-General on Khmer Rouge trials, A/60/565, November 25, 2005, ¶ 12. 97. Letter from David Hutchinson to Sean Visoth, February 24, 2006. 98. UNGA, Report of the Secretary-General on Khmer Rouge trials, A/59/432, October 12, 2004, ¶ 33. 99. “Training begins for Khmer Rouge tribunal judges,” AP, August 25, 2004. 100. Personal communication from Mohamed Othman, September 11, 2004. 101. Prak Chan Thul and Lee Berthiaume, “Court Officials Defend Suitability for KR Tribunal,” Cambodia Daily, May 6, 2005. 102. Personal communication from Long Panhavuth, May 4, 2006. 103. Janna Hamilton, “Money woes take spotlight, but flurry of work going on in preparation of KR trial,” Phnom Penh Post, April 8, 2005. 104. Personal communication from Long Panhavuth, May 10, 2005. 105. “Prosecutors, Judges Prepare for KR Trial,” Cambodia Daily, August 25, 2004. 106. Personal communication from Long Panhavuth, June 20, 2005. 107. Prak Chan Thul and Erik Wasson, “KR Judges Say They Still Need More Training,” Cambodia Daily, May 17, 2005. 108. Thul and Wasson, “KR Judges Say They Still Need More Training.” 109. Thul and Wasson, “KR Judges Say They Still Need More Training.” 110. Thul and Wasson, “KR Judges Say They Still Need More Training.” 111. Thul and Wasson, “KR Judges Say They Still Need More Training.” 112. Documentation Center of Cambodia, “Summary of Documentation Center of Cambodia’s 2005 Activities,” [no date]. 113. OSJI, “Support to the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea,” [no date]. 114. Cambodian Defenders Project, Bar Association of the Kingdom of Cambodia, and Legal Aid of Cambodia, “Statement by Cambodian Legal Aid Groups on Judicial Independence in Khmer Rouge Trials,” October 22, 1999. 115. CHRAC, “Khmer Rouge [Tribunal] Draft Law Cannot Bring Justice to Cambodians,” January 6, 2000. 116. Hamilton, “Money woes take spotlight.” 117. CHRAC, Press Release, April 25, 2005. 118. CHRAC, Press Release, April 25, 2005. 119. OSJI, “Issues of Priority Concerning the Extraordinary Chambers,” August 8, 2005. 120. “Recommendations of Non-Governmental Organizations for the Internal Regulations for the Extraordinary Chambers,” September 22, 2005. 121. Personal communication with Long Panhavuth, May 4, 2005. 122. Personal communication with Laura McGrew, October 5, 2004. 123. Personal communication with Helen Jarvis, September 26, 2003. 124. Personal communication with Gregory Stanton, August 21, 2004. 125. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, June 6, 2003.

382 6. TRANSITIONAL JUSTICE

126. “Budget estimate for year 1 through year 3,” Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, December 31, 2004. 127. “Cambodia’s prime minister takes potshots at partners in planned genocide tribunal,” AP, September 16, 2004. 128. “Cambodia’s prime minister takes potshots at partners in planned genocide tribunal.” 129. “UN and Cambodia agree on budget for Khmer Rouge trial,” AFP, December 10, 2004. 130. Lor Chandara and Ian Neubauer, “Gov’t Slashes KR Tribunal Contribution,” Cambodia Daily, March 28, 2005. 131. Chandara and Neubauer, “Gov’t Slashes KR Tribunal Contribution.” 132. UN, “Governments Pledge $38.48 Million for Khmer Rouge Trials in Cambodia,” L/3082, March 28, 2005. 133. “Khmer Rouge tribunal funding to be met, says top Cambodia adviser,” AFP, March 29, 2005. 134. Lee Berthiaume, “UN Falls Short $4.5 Million For KR Trial,” Cambodia Daily, March 30, 2005. 135. Lee Berthiame and Kuch Naren, “Local Businessmen May Help Pay KR Trial,” Cambodia Daily, June 6, 2005. 136. Berthiame and Naren, “Local Businessmen May Help Pay KR Trial.” 137. Berthiame and Naren, “Local Businessmen May Help Pay KR Trial.” 138. Berthiame and Naren, “Local Businessmen May Help Pay KR Trial.” 139. “Cambodian opposition urges local fund-raising for Khmer Rouge trial,” AFP, June 6, 2005. 140. Ek Madra, “Prime Minister opposes private funds for Cambodia Genocide Trial,” Reuters, June 8, 2005. 141. Kuch Naren and Lee Berthiaume, “PM Rejects Fund Raising For KR Trial,” Cambodia Daily, June 9, 2005. 142. Naren and Berthiaume, “PM Rejects Fund Raising For KR Trial.” 143. Naren and Berthiaume, “PM Rejects Fund Raising For KR Trial.” 144. Naren and Berthiaume, “PM Rejects Fund Raising For KR Trial.” 145. Naren and Berthiaume, “PM Rejects Fund Raising For KR Trial.” 146. Naren and Berthiaume, “PM Rejects Fund Raising For KR Trial.” 147. “Cambodia to seek funds from Japan for Khmer Rouge tribunal,” ABC Radio Australia, March 5, 2005. 148. “Japan to fill shortfall in Khmer Rouge trial budget,” Kyodo, June 10, 2005. 149. Lee Berthiaume, “Government Waiting for Donor Response to Appeal,” Cambodia Daily, June 13, 2005. 150. Berthiaume, “Government Waiting for Donor Response to Appeal.” 151. Pin Sisovann and Lee Berthiaume, “KR Tribunal Fully Funded, Says Minister,” Cambodia Daily, June 22, 2005. 152. Sisovann and Berthiaume, “KR Tribunal Fully Funded, Says Minister.” 153. Kate Woodsome, “Cambodia Accepts Japan’s Offer to Fund Khmer Rouge Tribunal,” VOA, June 22, 2005. 154. Kate Woodsome, “Cambodian Prime Minister Warns No Khmer Rouge Tribunal Without More Aid,” VOA, August 15, 2005.

383 7. S E L E C T I V E J U S T I C E

155. “India pledges $1 million for Khmer Rouge trial,” http://khmerrougetrial.blogspot .com/2005/10/india-pledges-1-mn-for-khmer-rouge.html. 156. Lee Berthiaume, “Europe Pledges $1.2 Million for KR Tribunal,” Cambodia Daily, December 29, 2005. 157. Lee Berthiaume, “No More Tribunal Aid Soon, Say Canada, Germany,” Cambodia Daily, December 12, 2005. 158. Berthiaume, “No More Tribunal Aid Soon.”

7. SELECTIVE JUSTICE 1. “Judges Sworn in for Khmer Rouge Trial,” Al Jazeera, July 3, 2006. 2. “Remarks at the Reception following the Swearing In of National and International Judicial Officers for the Extraordinary Chambers in the Courts of Cambodia, by His Excellency Sok An,” July 3, 2006. 3. The following account is based on the author’s contemporaneous notes from July 6, 2006. He was a member of the working group on investigations and detentions. 4. “Cambodia arrests last Khmer Rouge leader,” CNN, March 6, 1999. 5. Military Court, Order to Forward Case for Investigation, No. 019/99, Phnom Penh, March 9, 1999. 6. Article 14(4) of the UNTAC Criminal Code provides that “The duration of a pretrial detention must in no case exceed four months. However, upon the reasoned decision of a judge, this period may extend to six months if justified by the requirements of the investigation.” UNTAC, Provisions Dated September 10, 1992 Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period, September 10, 1992. 7. Kingdom of Cambodia, Law on Temporary Detention Period, August 14, 1999. 8. Military Court, Order to Forward Case for Investigation, No. 044/99, Phnom Penh, September 6, 1999. 9. Military Court, Detention Order, No. 15DK/2002, Phnom Penh, February 22, 2002. 10. Military Court, Detention Order, Phnom Penh, February 28, 2005. 11. “Khmer Rouge ‘butcher’ Ta Mok dies,” BBC, July 21, 2006. 12. Nic Dunlop, The Lost Executioner: A Story of the Khmer Rouge (London: Bloomsbury, 2005), 207. 13. Dunlop, The Lost Executioner, 255, 262. 14. Military Court, Indictment, No. 012/99, Phnom Penh, May 10, 1999. 15. Military Court, Detention Order, No. 176/99, Phnom Penh, September 10, 1999. 16. Military Court, Detention Order, No. 16DK/2002, Phnom Penh, February 22, 2002. 17. Military Court, Detention Order, No. 08/05, Phnom Penh, February 28, 2005. 18. For example, lawyer and human rights activist Stan Starygin had written numerous briefs attempting to draw attention to what he argued was the illegal detention of Mok and Duch. 19. In December 2006, six months after the ECCC began operations, Amnesty International finally issued a call for Duch to be freed on the grounds that “six years in pretrial detention is clearly not in compliance with international standards.” Charles McDermid and Sam Rith, “Calls for infamous Duch to go free,” Phnom Penh Post, December 15, 2006.

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20. Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia, Arrest Warrant, Phnom Penh, July 30, 2007. 21. At the reception following the swearing-in of the judges, the author commented to UN Legal Counsel Nicolas Michel that the three-year deadline was “a figment of the donors’ fevered imaginations.” He looked at the author and sternly replied, “You will finish your work within three years!” That would not happen. 22. “Remarks at the Reception following the Swearing In of National and International Judicial Officers for the Extraordinary Chambers in the Courts of Cambodia, by His Excellency Sok An,” July 3, 2006. 23. Author’s conversation with National Co-Prosecutor Chea Leang, July  2006. I replied to the co-prosecutor that unless you have many lifetimes to complete the job, you do not investigate two million murders. Instead, you analyze the violence as a whole, identify the patterns of killing, and then investigate a selection of typical instances. 24. This and the two following paragraphs are based on the author’s contemporaneous notes, August 25, 2006. 25. Author’s contemporaneous notes of the meeting. 26. Constitution dated September 24, 1993, Article 40: “The rights to privacy of residence, and to the secrecy of correspondence by mail, telegram, fax, telex and telephone shall be guaranteed.” 27. Marcel Lemonde, Un juge face aux Khmers rouges (Paris: Éditions du Seuil, 2013), 33. My translations, here and hereinafter. 28. “Twelve Cambodian police officers receive technical training to investigate war crimes and genocide,” Cambodge Soir, August 7, 2006. 29. National Police Chief Hok Lundy—soon to be imprisoned for all manner of crimes—eventually delivered the names of 50 security officers he said were available for training. Letter from Hok Lundy to Sean Visoth, “List of Police Officers for Training Participation,” September 19, 2006. 30. Ambassador Mussomeli, “KRT Developments,” Cable from U.S. Embassy Phnom Penh to the U.S. State Department, November 2, 2006. 31. Ek Madra, “Khmer Rouge Prosecutors Say Probe Will Take Months,” Reuters, July 7, 2006. 32. “Prosecutors open Khmer Rouge probe,” AFP, July 10, 2006. 33. “Cambodia Tribunal Will Set Fate of Khmer Rouge Leaders,” AP, July 5, 2006. 34. For example, see “Case Matrix developers honored with the Dieter Meurer Förderspreis,” EDV-Gerichtstag, October  4, 2013, http://www.casematrixnetwork .org /uploads /media /080918_Dieter_Meurer_Prize_for_Legal_Informatics_for _ ICC_Case_Matrix.pdf. 35. This account is based on the author’s contemporaneous notes. 36. Author’s contemporaneous notes, August 5, 2006. 37. Sopheng Cheang, “Kids: Ex-Khmer Rouge Leader Didn’t Flee,” AP, July 12, 2006. 38. “Former Khmer Rouge leaders leave homes for unknown destination,” Cambodian Press Review, July 12, 2006. 39. “Media ‘intimidating’ ex-DK leaders: Cambodian gov’t,” Xinhua, July 12, 2006. 40. “Cambodian media hounding ex-KR chiefs: government,” AFP, July 12, 2006. 41. Philippa McDonald, “New Uncertainty over Khmer Rouge Trials,” Australian Broadcasting Corporation, July 15, 2006.

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42. “Ailing former Khmer Rouge Commander’s Health Improves,” Asia-Pacific News, July 18, 2006. 43. Cambodian Human Rights Action Committee, “Media Statement: On the Concern about the Possible Loss of Potential Witness or Suspect before ECCC,” July 14, 2006. 44. Ek Madra, “Khmer Rouge ‘Butcher’ Ta Mok Dies,” Reuters, July 21, 2006. 45. “Death bed KR commander has already told half of his story,” Cambodian Press Review, July 18, 2006. 46. Lemonde, Un juge, 31. 47. Author’s notes from the Judicial Strategic Planning and Development Workshop, July 5, 2006. 48. Author’s notes, July 5, 2006. 49. Author’s notes from the Judicial Strategic Planning and Development Workshop, July 6, 2006. 50. Author’s notes, July 5, 2006. 51. Author’s notes, July 5, 2006. 52. Author’s notes, July 5, 2006; personal communication with Helen Jarvis, November 23, 2015. 53. Personal communication with Gregory Stanton, November 25, 2015. 54. Author’s interview with Judge Agnieszka Klonowiecka-Milart, Phnom Penh, July 11, 2015. 55. Lemonde, Un juge, 34. 56. Author’s notes from a meeting with Judge Marcel Lemonde, September 10, 2006. 57. Author’s contemporaneous notes, September 23, 2006. 58. Soren Seelow, “Internal rules of the Tribunal in preparation,” Cambodge Soir, September 19, 2006. 59. Author’s interview with Judge Agnieszka Klonowiecka-Milart, Phnom Penh, July 11, 2015. 60. “Cambodia’s ECCC Making Good Progress,” Cable from U.S. Embassy Phnom Penh to the U.S. State Department, October 10, 2006. 61. “ECCC issues draft Internal Rules for public comments,” Xinhua, November 3, 2006. 62. Erik Wasson, “KR Tribunal Rules Released for Public Comment,” Cambodia Daily, November 4, 2006. 63. Erik Wasson, “Review of KR Tribunal Rules Under Way,” Cambodia Daily, November 8, 2006. 64. Amnesty International, “Cambodia: Extraordinary Chambers must not rush to adopt flawed Rules,” ASA 23/012/2006, November 22, 2006. 65. ECCC, Office of Public Affairs, Press Announcement, November 16, 2006. 66. Lemonde, Un juge, 35. 67. Author’s contemporaneous notes from the Second Plenary of Session of Judges of the ECCC. 68. Author’s contemporaneous notes from the Second Plenary. 69. Lemonde, Un juge, 35. 70. Author’s contemporaneous notes from the Second Plenary. 71. Author’s contemporaneous notes from the Second Plenary. 72. Author’s contemporaneous notes from the Second Plenary.

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73. Author’s contemporaneous notes from the Second Plenary. 74. Lemonde, Un juge, 35. 75. “Cambodian bar association seeks control over defense lawyers in Khmer Rouge tribunal,” AP, November 23, 2006. 76. Erika Kinetz and Prak Chan Thul, “Bar Threatens Lawyers over ECCC Training,” Cambodia Daily, November 23, 2006. 77. Prak Chan Thul, Erika Kinetz, and Douglas Gillison, “Official: Bar to Boycott KR Trial Training,” Cambodia Daily, November. 24, 2006. 78. Thul, Kinetz, and Gillison, “Official: Bar to Boycott KR Trial Training.” 79. “Row over foreign lawyers threatens KRouge tribunal,” AFP, Nov. 24, 2006. 80. Cat Barton, “Extraordinarily Troubled Chambers,” Phnom Penh Post, Dec. 1, 2006. 81. Barton, “Extraordinarily Troubled Chambers.” 82. Milton Osborne, “The Khmer Rouge Tribunal: an ambiguous good news story,” Lowy Institute Perspectives, August 27, 2007. 83. Author’s contemporaneous notes, November 26, 2006. 84. “Joint Statement by the National and International Judicial Officers of the ECCC,” Phnom Penh, November 25, 2006. 85. “Joint Statement by the National and International Judicial Officers of the ECCC.” 86. Barton, “Extraordinarily Troubled Chambers.” 87. This section is based on the author’s recollection of events in the Office of CoProsecutors during the second half of 2006. 88. Article 1, “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecution of Crimes Committed during the Period of Democratic Kampuchea,” Reach Kram No. NS/RKM/0801/12, 10 August 2001. 89. “Judge says Cambodian genocide tribunal in jeopardy if court rules not adopted,” AP, May 23, 2007. 90. Richard Woodd and Vong Sokheng, “US Senate moves to block KR trial funds,” Phnom Penh Post, October 8, 2004. 91. Steve Heder, with an introduction by David Boyle, “A Review of the Negotiations Leading to the Establishment of the Personal Jurisdiction of the Extraordinary Chambers in the Courts of Cambodia” (unpublished typescript), August 1, 2011, 40. 92. OCP, “Summary of Target Suspects,” October 16, 2006, and OCP, “Summary of Targets Addendum,” October 17, 2006. 93. Erika Kinetz, “Rules Dispute Might Cause KR Trial Delay,” Cambodia Daily, December 15, 2006. 94. ECCC, Rules Review Committee, Minutes of Review Committee Meeting of 15 and 18 December 2006. 95. Kinetz, “Rules Dispute.” 96. Erika Kinetz, “Sok An Calls for UN ‘Dialogue’ On KR Defense,” Cambodia Daily, December 18, 2006. 97. Human Rights Watch, “Donors Should Recognize How Government Tactics Threaten Entire Process,” December 5, 2006. 98. ECCC, Rules Review Committee, Minutes of 1st Session of the Review Committee, 16–26 January 2007. 99. Author’s contemporaneous notes, January 19, 2007.

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100. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 6 June 2003. Article 7(4) provides “A decision of the Pre-Trial Chamber . . . requires the affirmative vote of at least four judges. . . . If there is no majority, as required for a decision, the investigation or prosecution shall proceed.” 101. Author’s contemporaneous notes, January 19, 2007. 102. Author’s interview with Judge Agnieszka Klonowiecka-Milart, Phnom Penh, July 11, 2015. 103. Author’s contemporaneous notes, January 19, 2007. 104. The author was among those who urged Scheffer to conduct the intervention. 105. David Scheffer memo on his meeting with Sok An, January 21, 2007. 106. David Scheffer memo. 107. David Scheffer memo. 108. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 6 June 2003. 109. David Scheffer memo. 110. Personal communication from David Scheffer, January 23, 2007. 111. Author’s contemporaneous notes from meeting with Sean Visoth, January 22, 2007. 112. Steve Heder and Brian Tittemore, Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge (Phnom Penh: Documentation Center of Cambodia, 2004). 113. Author’s contemporaneous notes from meeting with Sean Visoth. 114. Personal communication with David Scheffer, January 23, 2007. 115. Lemonde, Un juge, 37. 116. Cat Barton, “Kickback claims stain the KRT,” Phnom Penh Post, February 23, 2007. 117. Personal communication with David Scheffer, January 25, 2007. 118. “Khmer Rouge Trial Remains Stalled, But Agreement Inching Closer,” DPA, January 29, 2007. 119. “Time running out for Cambodia genocide trials,” AFP, February 7, 2007; “Khmer Rouge Tribunal at Risk,” Spiegel Online, February 15, 2007; Erika Kinetz, “Khmer Rouge Trials Turn to Farce,” Newsweek International, February 25, 2007; Rory Byrne, “Cambodia’s Khmer Rouge Trials under Threat,” VOA, February 27, 2007. 120. Barton, “Kickback.” 121. OSJI, “Corruption Allegations at Khmer Rouge Court Must Be Investigated Thoroughly,” February 14, 2007. 122. Barton, “Kickback.” 123. Erika Kinetz and Pin Sisovann, “ECCC Cools to NGO after Kickback Charge,” Cambodia Daily, February 19, 2007. 124. Prak Chan Thul and James Welsh, “ECCC Won’t Work with Legal Group: Sok An,” Cambodia Daily, February 17, 2007. 125. ECCC, Press Release, February 26, 2007. 126. ECCC, Press Release, February 26, 2007. 127. Mean Veasna, “Tribunal Judges Meet To Review Rules,” VOA Khmer, March 2, 2007.

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128. Seth Meixner, “KRouge tribunal judges open crucial talks,” AFP, March 7, 2007. 129. Asian Human Rights Commission, “CAMBODIA: The Bar Association’s charge of exorbitant fees to foreign lawyers is immoral and is obstructing the Khmer Rouge trial,” AS-063-2007, March 23, 2007. 130. Khemara Sok, “Bar Association OK’s Foreign Lawyers, With Fees and Controls,” VOA Khmer, March 13, 2007. 131. “Ky Tech and His Group Created Obstacles to the Khmer Rouge Tribunal, Demanding a Big Amount of Money from Foreign Lawyers,” Khmer Amatak, March 19, 2007 (trans. The Mirror, 11:500, March 20, 2007). 132. “Despite delays, Cambodian foreign minister sees Khmer Rouge trials taking place,” AP, March 15, 2007. 133. “Khmer Rouge trial rules agreed at last,” Reuters, March 17, 2007. 134. Ker Munthit, “Judges fail to agree on rules for Cambodian genocide trials,” AP, March 17, 2007. 135. ECCC, “Statement from the Review Committee of the Extraordinary Chambers in the Courts of Cambodia,” March 16, 2007. 136. ECCC, “Statement from the Review Committee of the Extraordinary Chambers.” 137. ECCC, “Statement from the Review Committee of the Extraordinary Chambers.” 138. Rory Byrne, “Internal Rules Governing Khmer Rouge Tribunal Reached,” VOA, March 19, 2007. 139. Ian MacKinnon, “Bar fee dispute delays Khmer Rouge hearings,” The Guardian (U.K.), March 19, 2007. 140. Cat Barton, “Bar fees last KRT hurdle,” Phnom Penh Post, March 23, 2007. 141. Barton, “Bar fees last KRT hurdle.” 142. Barton, “Bar fees last KRT hurdle.” 143. Asian Human Rights Commission, “CAMBODIA: The Bar Association’s charge of exorbitant fees to foreign lawyers is immoral and is obstructing the Khmer Rouge trial,” March 23, 2007. 144. Cat Barton, “Your money, or your standards,” Phnom Penh Post, April 6, 2007. 145. Rory Byrne, “Dispute Over Lawyers’ Fees is Latest Threat to Long-Delayed Khmer Rouge Trial,” VOA, April 7, 2007. 146. Douglas Gillison and Prak Chan Thul, “Bar Could Be Kept Out of Khmer Rouge Trial: International Judges,” Cambodia Daily, April 3, 2007. 147. UNAKRT, “International Judges of ECCC say April plenary is not possible,” April 3, 2007. 148. Gillison and Thul, “Bar Could Be Kept Out.” 149. “Press Release Issued at the Request of the National Judges of the ECCC,” April 5, 2007. 150. Prak Chan Thul and Douglas Gillison, “Cambodian ECCC Judges: If Bar Goes, We Go,” Cambodia Daily, April 6, 2007. 151. Thul and Gillison, “If Bar Goes, We Go.” 152. Barton, “Bar fees last KRT hurdle.” 153. “International Khmer Rouge trial judges announce boycott,” Asia-Pacific News, April 3, 2007. 154. Barton, “Your money, or your standards.” 155. Thul and Gillison, “If Bar Goes, We Go.” 156. Thul and Gillison, “If Bar Goes, We Go.”

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157. Thul and Gillison, “If Bar Goes, We Go.” 158. Rory Byrne, “Dispute Over Lawyers’ Fees is Latest Threat to Long-Delayed Khmer Rouge Trial,” VOA, April 7, 2007. 159. Erika Kinetz and Prak Chan Thul, “International Lawyers Join in Condemnation of High Bar Association Fees,” Cambodia Daily, April 12, 2007. 160. “Japan Urges to have Solutions for the Deadlock of the Khmer Rouge Tribunal Caused by Ky Tech,” Moneaksekar Khmer, April 23, 2007 (unofficial translation). 161. Author’s interview with Helen Jarvis, Phnom Penh, July 4, 2015. 162. Mean Veasna, “Bar Association Lowers Fees for Tribunal’s Foreign Lawyers,” VOA Khmer, April 27, 2007. 163. Erika Kinetz and Yun Samean, “Fee Cut Could End Deadlock at KR Tribunal,” Cambodia Daily, April 30, 2007. 164. Erika Kinetz and Prak Chan Thul, “International Judges Welcome Fee Cut,” Cambodia Daily, May 1, 2007. 165. Cat Barton, “About face: CBA lowers Bar fees for KRT,” Phnom Penh Post, May 4, 2007. 166. Rory Byrne, “Lawyers’ Fees Dispute for Khmer Rouge Tribunal Resolved,” VOA, May 1, 2007. 167. Heng Reaksmey, “With Lower Fees, Tribunal Judges Ready to Move Forward,” VOA Khmer, April 30, 2007. 168. Kinetz and Thul, “International Judges Welcome Fee Cut.” 169. Barton, “About face.” 170. “Bid to end deadlock in Cambodia genocide tribunal,” AFP, May 16, 2007. 171. “Judge says Cambodian genocide tribunal in jeopardy if court rules not adopted,” International Herald Tribune, May 23, 2007. 172. Douglas Gillison and Prak Chan Thul, “ECCC Judges To Meet, Vote on Internal Rules,” Cambodia Daily, May 18, 2007. 173. Seth Meixner, “Khmer Rouge tribunal judges say genocide trials on track,” AFP, June 1, 2007. 174. “Judges convene to thrash out Khmer Rouge trial internal rules,” DPA, June 4, 2007. 175. “Judges convene.” 176. Lemonde, Un juge, 41. 177. “UN-backed Tribunal Spokesman in Cambodia Did Not Give Trial’s Exact Start Date,” Koh Santepheap Daily Online, June 11, 2007 (unofficial translation). 178. Author’s contemporaneous notes, June 17, 2007. 179. ECCC Draft Internal Rules, May 24, 2007. 180. Amy Kazmin, “Cambodia clears way for Khmer Rouge trials,” Financial Times, June 14, 2007. 181. Joint Statement by Judicial Officers, “ECCC Plenary Session Unanimously Adopts Internal Rules,” June 13, 2007. 182. “Cambodia PM welcomes ‘Killing Fields’ tribunal pact,” Reuters, June 14, 2007. 183. Cat Barton and Vong Sokheng, “KRT climbs over major rules hurdle,” Phnom Penh Post, June 15, 2007. 184. ECCC, “ECCC Internal Rules Published,” June 20, 2007. 185. ECCC, “Internal Rules,” June 12, 2007 (ver. 1), Rule 1(1). 186. Author’s contemporaneous notes, July 16, 2007.

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187. Author’s contemporaneous notes, September 21, 2006. 188. Many types of evidentiary materials were included in the submission. The Documentation Center of Cambodia was the single largest source of material, including contemporaneous documents such as CPK Standing Committee and RAK General Staff meeting minutes and the Revolutionary Flag and Revolutionary Youth party journals, as well as interviews, photographs, films, maps, and other types of documents. The archives of the Tuol Sleng Museum of Genocide yielded a tremendous trove of probative materials, including confessions, execution logs, training materials, photographs, and other documents. OCP investigators obtained extensive Khmer Rouge financial and economic documents from Cambodia’s National Archives. Major scholars of the Khmer Rouge around the world donated a wide variety of databases and archival materials to OCP. Additional interviews were conducted by OCP staff. Historical and contemporary media reports were also a valuable source of evidence, as were books and articles on various aspects of the Khmer Rouge regime by scholars, reports by NGOs, and materials provided by other governments. Statements by civil parties and complainants were another major source of information. Two books written by Khieu Samphan and one mostly written by Nuon Chea were very helpful to prosecutors. Perhaps the greatest challenge was sorting the wheat from the chaff within this enormous collection of material. 189. Author’s contemporaneous notes, July 16, 2007. 190. Author’s contemporaneous notes, July 16, 2007. 191. Author’s contemporaneous notes, July 16, 2007. 192. Albert Speer was minister of armaments and munitions for the Nazi regime. See Gitta Sereny, Albert Speer: His Battle with Truth (New York: Knopf, 1995). Perhaps more precisely, Rith was analogous to another Nuremberg defendant, Hjalmar Schacht, the former minister of economics and head of the Reichsbank who, not incidentally, was acquitted by the International Military Tribunal. See Bradley F. Smith, Reaching Judgment at Nuremberg: The Untold Story of How the Nazi War Criminals Were Judged (New York: Basic Books, 1977), 128. 193. Author’s contemporaneous notes, July 17, 2007. 194. Poch Reasey, “Annual Reports Show Contradictions in Tribunal, Civic Leader Says,” VOA Khmer, July 9, 2007. 195. As of late 2018, a decade after it was filed, and near the end of the trials which resulted from it, the first Introductory Submission was still classified as confidential, unavailable to the public.

8. GENOCIDE JUSTICE 1. OCP’s continuation of the preliminary investigation, which resulted in Cases 003 and 004, will be considered in detail in the next chapter. 2. Author’s contemporaneous notes, August 5, 2007. 3. OCIJ, “Order of Provisional Detention,” C3, July 31, 2007, ¶ 8. 4. OCIJ, “Order of Provisional Detention,” C3, July 31, 2007, ¶ 19. 5. OCIJ, “Order of Provisional Detention,” C3, July 31, 2007, ¶ 21. 6. OCIJ, “Order of Provisional Detention,” C3, July 31, 2007, ¶ 22.

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7. Author’s contemporaneous notes, August 10, 2007. 8. “Cambodian genocide tribunal hit by new fears of delay,” AP, August 13, 2007. 9. See chapter 6. 10. Author’s contemporaneous notes, August 10, 2007. 11. Article 3(7): “The judges shall be appointed for the duration of the proceedings.” Article 5(7): “The co-investigating judges shall be appointed for the duration of the proceedings.” Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodia Law of Crimes committed during the Period of Democratic Kampuchea, June 6, 2003. 12. Author’s contemporaneous notes, August 10, 2007. 13. Erika Kinetz and Prak Chan Thul, “UN Asks Government to Keep Judge at KR Tribunal,” Cambodia Daily, August 23, 2007. 14. Kinetz and Thul, “UN Asks Government.” 15. Kinetz and Thul, “UN Asks Government.” 16. Erika Kinetz and Yun Samean, “PM: Judge Appointment will not Affect Tribunal,” Cambodia Daily, August 24, 2007. 17. Kinetz and Samean, “PM: Judge Appointment will not Affect Tribunal.” 18. “UN expresses concern at transfer of Khmer Rouge tribunal judge,” DPA, August 22, 2007. 19. “Cambodia’s UN-backed Genocide Court to Lose Key Judge,” AFP, August 14, 2007. 20. “UN-backed Tribunal’s Cambodian Judge Inducted as Appeal Court President 16 Aug,” Koh Santepheap Daily Online, August 17, 2007 (unofficial translation). 21. Kinetz and Thul, “UN Asks Government.” 22. Kinetz and Thul, “UN Asks Government.” 23. “Cambodian government heeds call to keep judge at genocide tribunal,” AP, August 24, 2007. 24. Letter from Serey Ratha Suon to Heng Samrin, August 20, 2007. 25. Cambodian People’s Party, “Statement,” August 24, 2007. 26. “Royal Government Firmly Defends Former King,” Agence Kampuchea Presse, August 27, 2007. 27. “Cambodia’s Hun Sen Speaks Out Against Demand to Lift Sihanouk’s Immunity,” Television Kampuchea, August 28, 2007 (unofficial translation). 28. Message from Norodom Sihanouk to Chea Sim, August 25, 2007. 29. Author’s contemporaneous notes, September 17, 2007. 30. “Sihanouk Refuses to Face Khmer Rouge Tribunal,” Development Weekly, September 3, 2007. 31. “Communiqué from Norodom Sihanouk of Cambodia,” August 30, 2007. 32. “Communiqué from Norodom Sihanouk of Cambodia.” 33. “Communiqué from Norodom Sihanouk of Cambodia.” 34. “Sihanouk Refuses.” 35. Letter from Michelle Lee to Kong Sam Ol, September  6, 2007 (unofficial translation). 36. Letter from Michelle Lee to Kong Sam Ol, September 6, 2007. 37. Letter from Michelle Lee to Kong Sam Ol, annotated by Norodom Sihanouk, September 6, 2007 (unofficial translation). 38. “Communiqué from Norodom Sihanouk of Cambodia.”

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39. Norodom Sihanouk, “Etudes Cambodgiennes, Complice des Khmers Rouges . . .,” Part 5, undated handwritten 3-page note, downloaded from http://norodomsiha nouk.info, September 14, 2007 (unofficial translation). 40. “Thomico wants Hun Sen to dissolve the KR tribunal,” Reasmei Kampuchea, September 18, 2007 (unofficial translation). 41. Author’s contemporaneous notes, September 20, 2007. 42. Author’s contemporaneous notes, September 17, 2007. 43. OCIJ, “Separation Order,” D18, September 19, 2007. 44. OCIJ, “Separation Order,” D18, September 19, 2007, 2. 45. Author’s contemporaneous notes, November 21, 2007. 46. Author’s contemporaneous notes, August 10, 2007. 47. “Following Arrests, Praise in Phnom Penh, Quiet on the Former Front,” VOA, November 12, 2007. 48. “Khmer Rouge Leader Issues Book on Cambodian History Ahead of Arrest,” Kyodo, November 13, 2007. 49. Author’s contemporaneous notes, November 21, 2007. 50. “Arraignment of Khieu Samphan Causes Astonishment,” Koh Santepheap Online, November 17, 2007 (unofficial translation). 51. Yun Samean and Erika Kinetz, “Khieu Samphan’s Arrest Is Seen as Imminent,” Cambodia Daily, November 19, 2007. 52. Author’s contemporaneous notes, November 21, 2007. 53. Author’s contemporaneous notes, November 21, 2007. 54. “First Hearing for Cambodia Court,” BBC, November 20, 2007. 55. For security reasons, the co-investigating judges withheld the identities of all witnesses in the public version of the Case 001 Closing Order (OCIJ, Closing Order indicting Kaing Guek Eav alias Duch, Public Redacted Version, D99, August 8, 2008), and thus no witnesses were publicly identified until they testified before the Trial Chamber. Even then, two witnesses and two civil parties testified under protective measures, shielding their identities from the public. (TC, Judgment, E188, July 26, 2010, 18.) 56. OCIJ, Report on the Execution of Rogatory Letter, D49/13, February 19, 2008; and OCIJ, Report on the Execution of Rogatory Letter, D77/9, April 25, 2008. 57. See document declassified by the court in 2012, Document D42/I, “Duch’s Notes to the request by CIJ on 24 Jan 2008,” March 18, 2008. 58. The author personally witnessed this event. 59. The author was present for this event. 60. Author’s contemporaneous notes, March 16, 2008. 61. Erika Kinetz, “Duch’s no-media return to the scene of the crime,” International Justice Tribune, March 3, 2008. 62. Erika Kinetz, “News Anchor Refuses to Cover KR Tribunal,” Cambodia Daily, March 11, 2008. 63. Erika Kinetz and Prak Chan Thul, “Duch’s Visits to KR Sites Were Filmed: Judges,” Cambodia Daily, March 4, 2008. 64. The Duch appeal verdict was issued on February 3, 2012, and the film first aired on April 1, 2012. See IMDb record for the film, “Khmer Rouge, A Simple Matter of Justice,” at http://www.imdb.com/title/tt2300981/combined. 65. Author’s contemporaneous notes, March 16, 2008.

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66. Author’s contemporaneous notes, June 13, 2008. 67. Author’s contemporaneous notes, June 13, 2008. 68. Author’s contemporaneous notes, June 17, 2008. 69. Author’s contemporaneous notes, June 19, 2008. 70. Author’s contemporaneous notes, June 19, 2008. 71. Mary Kimani, “First ICTR Acquittal,” Internews, June 7, 2001. 72. See http://www.stl-tsl.org/en/about-the-stl/biographies/361-head-of-defence-office -francois-roux. 73. See http://www.eccc.gov.kh/en/dss/defence-teams. 74. See http://www.eccc.gov.kh/en/dss/defence-teams. 75. See http://www.eccc.gov.kh/en/dss/defence-teams. 76. See http://www.eccc.gov.kh/en/persons/mr-michiel-pestman. 77. “French lawyer ‘Devil’s advocate’ Jacques Verges dies,” BBC, August 16, 2013. 78. Philip Short, Pol Pot: Anatomy of a Nightmare (New York: Henry Holt, 2004), 59. 79. Glyn Ford, “Cambodia’s revenge fiasco,” Japan Times Online, March 4, 2008. 80. Marcel Willard, La defense accuse (Paris: Éditions Sociales, 1938). According to Willard, Lenin instructed that when communist militants were put on trial, the defense should focus not on the person but on the cause. See also http://www .secoursrouge.org /La-defense-de-rupture, accessed January 18, 2016. 81. Jacques Vergès, De la stratégie judiciare (Paris: Les Éditions de Minuit, 1968). 82. OSJI, “Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: September 24, 2007 Update,” September 24, 2007. 83. Sue Se, “Lawyer slams detention of former Khmer Rouge Leader,” AFP, April 24, 2008. 84. “French lawyer’s outburst at Cambodia tribunal triggers delay,” AP, April 23, 2008. 85. Se, “Lawyer slams detention.” 86. Stephen Curczy, “Killing time at Cambodia’s ‘show trial,’ ” Asia Times Online, December 12, 2008. 87. Curczy, “Killing time at Cambodia’s ‘show trial.’ ” 88. Blog posting by Claire Duffett dated December  11, 2008, http://claireduffett .blogspot.com/2008/12/covering-tribunals.html. 89. Blog posting by Claire Duffett dated December  11, 2008, http://claireduffett .blogspot.com/2008/12/covering-tribunals.html. 90. PTC, Appeal Hearing Transcript, C26/5, April 3, 2009, 45. 91. “PTC Rejects former KR Leader’s Translation Appeal,” AFP, February 20, 2009. 92. Stephanie Giry, “Against the Law,” The National, August 14, 2009. 93. Giry, “Against the Law.” 94. Appeal Hearing Transcript, C26/5, 46–7. 95. Appeal Hearing Transcript, C26/5, 46–7, 64. 96. Appeal Hearing Transcript, C26/5, 46–7. 97. Appeal Hearing Transcript, C26/5, 46–7. 98. Giry, “Against the Law.” 99. Stéphanie Gée, “Jacques Vergès receives second warning from Khmer Rouge Tribunal for misconduct,” Ka-set, May 21, 2009. 100. PTC, Warning to International Co-Lawyer, C26/5/22, May 19, 2009. 101. These figures are from an analysis of PTC and TC hearing transcripts at http:// www.eccc.gov.kh/en/indicted-person/all/transcript.

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102. TC, Transcript of Trial Proceedings, E1/33.1, January 25, 2012, 59–65. 103. TC, Transcript of Trial Proceedings, E1/33.1, January 25, 2012, 67. 104. Author’s interview with Michiel Pestman, March 13, 2016. 105. OCIJ, Notice of Conclusion of Investigation, D89, May 15, 2008. 106. Internal Rules, 66(1). 107. Internal Rules, 66(5). 108. OCIJ, Report of Reconstruction, D86/15, April 11, 2008; OCIJ, Report of Reconstruction, D86/16, April 11, 2008. As of this writing, these reports have not been declassified and thus remain confidential. 109. The author’s records indicate that the Case 001 Final Submission was sent to OCP’s translation unit on June 12, 2008. 110. Closing Order Indicting Kaing Guek Eav alias Duch. 111. PTC, Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav “Duch” dated 8 August 2008, D99/3/3, September 5, 2008. 112. PTC, Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav “Duch,” D99/3/3, ¶ 42. 113. PTC, Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav “Duch,” D99/3/3, ¶ 72. 114. PTC, Decision on Appeal against Closing Order indicting Kaing Guek Eav alias “Duch,” D99/3/42, December 5, 2008. 115. An overview of the Duch trial can be found at http://www.eccc.gov.kh/en/indicted -person/kaing-guek-eav. 116. John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor: University of Michigan Press, 2014), 108. 117. See http://www.eccc.gov.kh/en/indicted-person/kaing-guek-eav. 118. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch” Trial, E1/70.1, August 27, 2009, 68–69. 119. Ciorciari and Heindel, Hybrid Justice, 117, characterized the event as an “implosion.” Thierry Cruvellier, in The Master of Confessions: The Trial of a Khmer Rouge Torturer (New York: HarperCollins, 2014), 298, described it as “a dagger in the back” for Roux, with the trial “in ruins.” David Scheffer called Kar Savuth’s advocacy “almost obscene.” “Duch’s defence in disarray as closing arguments conclude,” DPA, November 26, 2009. 120. TC, Transcript of Proceedings—Kaing Guek Eav “Duch” Trial, E1/6.1, March 31, 2009, 77. 121. TC, Transcript of Proceedings—Kaing Guek Eav “Duch” Trial, E1/6.1, March 31, 2009, 103. 122. Internal Rules, 89(1)(a), rev. 5, February 9, 2010. 123. TC, Transcript of Proceedings—“Duch” Trial, E1/7.1, April 1, 2009, 19. 124. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/80.1, November 25, 2009, 77. 125. The document is entitled “Decisions of the Central Committee on a Number of Questions,” in Pol Pot Plans the Future: Confidential Leadership Documents from Democratic Kampuchea, 1976–1977, ed. and trans. David P. Chandler, Ben Kiernan, and Chanthou Boua (New Haven: Yale University Southeast Asia Studies, 1988), 1–8.

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126. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/80.1, November 25, 2009, 116. 127. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 3. 128. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 9. 129. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 10. 130. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 85. 131. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 85. 132. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 86. 133. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 95. 134. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 103. 135. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 106. 136. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/81.1, November 26, 2009, 108. 137. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4. 138. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4. 139. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 8. 140. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 38. 141. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 38. 142. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 44. 143. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 51. 144. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 52. 145. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 53. 146. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 56. 147. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 59. 148. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 60.

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149. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 4, 62. 150. TC, Transcript of Trial Proceedings—Kaing Guek Eav “Duch,” E1/82.1, November 27, 2009, 62. 151. TC, Judgment, E188, July 26, 2010. This 275-page judgment likely was by far the most complex legal document that the national judges—and quite possibly most of the international judges, as well—had ever prepared, with more than 8,000 pages of trial transcripts and around 1,000 documents to analyze, and hundreds of legal decisions to make. Producing the judgment in three languages was also time-consuming, and thus the eight-month interval between the end of the trial and the delivery of the verdict was not unreasonable. 152. SCC, Appeal Judgement, F28, February 3, 2012, ¶ 383, and Partially Dissenting Joint Opinion of Judges Agnieszka Klonowiecka-Milart and Chandra Nihal Jayasinghe, ¶ 1. 153. Appeal Judgement, F28, February 3, 2012, ¶ 399. 154. OCIJ, Closing Order, D427, September 15, 2010, ¶ 17. 155. The public redacted versions of the OCIJ’s Closing Orders in Cases 001 (D99) and 002 (D427) are currently the only documents available to the general public that bring together all the threads of the investigations. 156. Ewa Tabeau and They Kheam, Khmer Rouge Victims in Cambodia, April 1975—January 1979: A Critical Assessment of Major Estimates, D140/1/1, September 30, 2009. 157. Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (Westport, CT: Praeger, 2005), 107–127; and Ben Kiernan, The Pol Pot Regime: Race, Power and Genocide in Cambodia Under the Khmer Rouge, 1975–1979 (New Haven, CT: Yale University Press, 2008), chapter 11. 158. Determining the total number of victims in historical episodes of mass killing is notoriously difficult and always politically controversial. Journalists have often used Kiernan’s 1.7 million estimate, which was extrapolated from interview data. My own 2.2 million estimate, in contrast, was based on a combination of demographic analysis and mass grave surveys. All of these methods—interviews, demographics, and mass grave surveys—are subject to various uncertainties and methodological challenges, and thus analysts often prefer to present a likely range of deaths, rather than a single figure. 159. Author’s contemporaneous notes, December 20, 2007. 160. PTC, Request for Resumés of PTC Judges, C11/16, January 9, 2008. 161. Sok Khemara, “Nuon Chea Calls for Judges’ Removal,” VOA, January 29, 2008. 162. “Judge Ney Thol’s ‘Dubious Record’ Discussed,” AP, May 22, 2006. 163. PTC, Order on Time Limit for Submissions—Application for Disqualification of Judge Ney Thol, C11/22, January 30, 2008. 164. PTC, Public Decision on the Co-Lawyers Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal against the Provisional Detention Order in the Case of Nuon Chea, C11/29, February 4, 2008. 165. Suy Se, “KRouge leader’s detention hearing postponed,” AFP, February 4, 2008. 166. Georgia Wilkins, “Graft could taint trials at the KRT: defense lawyers,” Phnom Penh Post, September 25, 2008; Douglas Gillison, “Nuon Chea Team: Alleged Graft at KRT Could Harm Fairness,” Cambodia Daily, September 25, 2008.

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167. Douglas Gillison, “Nuon Chea Team Asks Sok An for Graft Findings,” Cambodia Daily, November 7, 2008. 168. Gillison, “Nuon Chea Team Asks Sok An for Graft Findings”; Georgia Wilkins, “Defence lawyers urge Sok An to hand over KRT corruption info,” Phnom Penh Post, November 7, 2008. 169. Author’s contemporaneous notes, January 8, 2009. 170. National Judges Press Release, January 9, 2009. 171. National Judges Press Release, January 9, 2009. 172. “Dutch Cambodia trial lawyers claim intimidation,” Radio Netherlands Worldwide, January 9, 2009. 173. “Top Cambodia KRouge trial officials to be investigated for graft,” AFP, January 12, 2009. 174. Cheang Sokha and Georgia Wilkins, “PP court to summon KRT staff in graft case,” Phnom Penh Post, January 15, 2009. 175. “The German Government Announces to Suspend Aid for the Khmer Rouge Tribunal,” Moneaksekar Khmer, 16:3678, February 4, 2009, trans. The Mirror, 13:598, February 4, 2009. 176. Georgia Wilkins, “Probe ‘will not interrupt KRT,’ ” Phnom Penh Post, January 21, 2009. 177. Kong Sothanarith, “Investigation of Tribunal Officers Underway,” VOA, January 26, 2009. 178. Georgia Wilkins, “Defence lawyers condemn halt of KR tribunal probe,” Phnom Penh Post, February 9, 2009. 179. “Deputy Prosecutor Sok Kalyan: ‘Corruption Scandal Just a Claim Without Basis Facts,’ ” Reasmei Kampuchea, 17:4816, February 8–9, 2009, trans. The Mirror, 13:599, February 9, 2009. 180. “Phnom Penh court dismisses probe into Khmer Rouge court kickbacks,” AP, February 7, 2009. 181. “Deputy Prosecutor Sok Kalyan.” 182. Wilkins, “Defence lawyers condemn halt of KR tribunal probe.” 183. Stéphanie Gée, “Complaint of Nuon Chea’s lawyers dismissed by Phnom Penh’s Municipal Court,” Ka-set, February 10, 2009. 184. Letters of February 23 and March 4, 2009 from Michiel Pestman, Victor Koppe, and Andrew Ianuzzi to Ban Ki-moon; Douglas Gillison, “Nuon Chea Lawyers Ask UN Chief for Graft Report,” Cambodia Daily, February 25, 2009; Georgia Wilkins, “KRT lawyers call to Ban Ki-moon,” Phnom Penh Post, February 25, 2009. 185. OCIJ, Eleventh Request for Investigative Action, D158, March 27, 2009. 186. OCIJ, Press Release, April 9, 2009. 187. PTC, Nuon Chea Appeal against Order on Eleventh Investigative Request, D158/5/1/1, May 4, 2009. 188. PTC, Decision on Appeal against the Co-Investigating Judges’ Order on the Accused Person’s Eleventh Request for Investigative Action, D158/5/1/15, August 18, 2009. 189. “Khmer Rouge Court: mechanism to address complaints still a work in progress,” Ka-set, February 3, 2009. 190. “Progress in KRouge court corruption talks: UN,” AFP, February 24, 2009.

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191. Vong Sokheng and Georgia Wilkins, “No agreement as UN, gov’t strive to tackle graft at KRouge court,” Phnom Penh Post, April 7, 2009. 192. Seth Mydans, “Corruption Allegations Affect Khmer Rouge Trials,” New York Times, April 10, 2009; Sok Khemara, “UN to Blame for Breakdown: Official,” VOA, April 17, 2009. 193. Dan Rivers, “Cambodian war crimes court in corruption probe,” CNN, April 1, 2009. 194. Georgia Wilkins, “KRT judges suppress corruption questions,” Phnom Penh Post, April 3, 2009. 195. Cat Barton, “Alleged corruption at Cambodia’s war-crimes tribunal,” Wall Street Journal Asia, April 1, 2009. 196. Wilkins, “KRT judge suppress corruption questions.” 197. “The Court on Trial,” The Economist, April 2, 2009. 198. “The Court on Trial,” The Economist, April 2, 2009. 199. Sok Khemara, “Tribunal Administrator Answers Allegations,” VOA, April 2, 2009. 200. For the record, Michael Karnavas specifically denied to the author that he collaborated in a “rupture” strategy in conjunction with the Nuon Chea defense team, saying that he would not “engage in that kind of thing.” Author’s interview with Michael Karnavas, June 7, 2016. 201. PTC, Ieng Sary’s Application to Disqualify Co-Investigating Judge Marcel Lemonde and Request for a Public Hearing, Doc. No. 1, October 9, 2009. “Inculpatory evidence” is information that tends to implicate the accused in a crime, while “exculpatory evidence” is information that tends to exonerate the accused. 202. “KRouge lawyer demands judge’s disqualification in Cambodia,” AFP, October 9, 2009. 203. PTC, Decision on Ieng Sary’s Application to Disqualify Co-Investigating Judge Marcel Lemonde, Doc. No. 7, December 9, 2009, ¶ 23. 204. PTC, Request for Appropriate Measures to be Taken Concerning Certain Statements by Prime Minister Hun Sen which Challenge the Independence of Pre-Trial Chamber Judges Katinka Lahuis and Rowan Downing, Doc. No. 1, October 20, 2009. 205. PTC, Decision on Ieng Sary’s Request for Appropriate Measures to be Taken Concerning Certain Statements by Prime Minister Hun Sen which Challenge the Independence of Pre-Trial Chamber Judges Katinka Lahuis and Rowan Downing, Doc. No. 5, November 30, 2009, ¶ 15. 206. PTC, Application to Disqualify Co-Investigating Judge Marcel Lemonde, Doc. No. 1, October 13, 2009. 207. PTC, Application to Disqualify Co-Investigating Judge Marcel Lemonde, Doc. No. 1, October 13, 2009, ¶ 38, 39. 208. PTC, Decision on Khieu Samphan’s Application to Disqualify Co-Investigating Judge Marcel Lemonde, Doc. No. 7, December 14, 2009. 209. Letter of Nuon Chea’s lawyers on lack of confidence in the Judicial Investigation, D221, October 15, 2009. 210. OCIJ, CIJ’s Response to Letter of Nuon Chea’s lawyers on lack of confidence in the Judicial Investigation, D221/1, October 27, 2009. 211. PTC, Application for Disqualification of Judge Marcel Lemonde, Doc. No. 1, October 29, 2009.

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212. PTC, (Redacted) Decision on Application for Disqualification of Judge Marcel Lemonde, Doc. No. 4, March 23, 2010, ¶ 25. 213. OCIJ, Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith, D263/1, October 31, 2009; OCIJ, Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith, D264/1, October 31, 2009. 214. PTC, Defence Appeal against “Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith” (D263/1) of 31 December 2009, D263/2/1, February 2, 2010; PTC, Defence Appeal against “Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith” (D264/1) of 31 December 2009, D264/2/1, February 2, 2010. 215. PTC, Decision on Ieng Thirith’s Appeal against the Co-Investigating Judges’ Order Rejecting the Request to Seise the Pre-Trial Chamber with a View to Annulment of All Investigations, D263/2/6, June 25, 2010. 216. Guy De Launey, “Khmer Rouge case judge ‘biased,’ ” BBC, October  10, 2009; “French judge blasted over alleged KRouge bias,” AFP, October 12, 2009; Sebastian Strangio, “Second bias motion planned,” Phnom Penh Post, October 12, 2009; David Boyle, “Cambodia’s Khmer Rouge trials hit another hurdle,” Radio Australia, October 30, 2009. 217. Stéphanie Gée, “Allegations of corruption and political interferences: A thorn in the side of the Khmer Rouge Tribunal,” Ka-set, June 4, 2009. 218. Author’s interview with Robert Petit, April 4, 2016. 219. OCIJ, Tenth Request for Investigative Action, D136, February 24, 2009. 220. “Testimony of Cambodia leaders sought at KRouge trial: reports,” AFP, March 2, 2009; Sopheng Cheang, “Cambodia PM testimony sought at Khmer Rouge trial,” AP, March  2, 2009; Stéphanie Gée, “Leaks at the Khmer Rouge Court: CoInvestigating Judges call to order,” Ka-set, March 4, 2009. 221. “Khmer Rouge court calls government witnesses,” AFP, October 7, 2009. 222. “Khmer Rouge court calls government witnesses,” AFP, October 7, 2009. 223. “Cambodia PM questions Khmer Rouge court summonses,” AFP, October  8, 2009. 224. “Summons to colleagues won’t help justice: Hun Sen,” AP, October 8, 2009. 225. “Khmer Rouge lawyers demand probe,” AFP, December 1, 2009. 226. “Khmer Rouge lawyers demand probe,” AFP, December 1, 2009. 227. OCIJ, Request for Investigation, D254, November 30, 2009. 228. “Cambodian PM denies interfering with KRouge court,” AFP, October 3, 2009. 229. OCIJ, Addendum to First “Request for Investigation,” D254/2, December 7, 2009, ¶ 4. Emphasis in original. 230. As of this writing in December  2018, many of the filings produced during this episode remain classified as “Confidential” or “Highly Confidential.” However, some key documents were leaked to the media, presumably by international defense attorneys, and thus now may be considered to be in the public domain for scholarly purposes. 231. OCIJ, Ieng Sary’s Eleventh Request for Investigative Action, D284, December 17, 2009.

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232. OCIJ, Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses, D314, January 13, 2010. 233. PTC, Ieng Sary’s Appeal Against the OCIJ’s Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses Referred to in his Letter dated 16 December 2009 and in Paragraph 21(D) of his 11th Investigative Request, D314/1/4, March 15, 2010; PTC, Appeal Against OCIJ Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses, D314/2/4, March 16, 2010. 234. PTC, Decision on Nuon Chea and Ieng Sary’s Appeal Against OCIJ on Requests to Summon Witnesses, D314/1/8, June 8, 2010. 235. OCIJ, Order in Response to the Appeal Chamber’s Decision on Nuon Chea and Ieng Sary’s Requests to Summon Witnesses, D314/3, June 11, 2010, ¶ 6. 236. PTC, Ieng Sary’s Submissions to the Co-Investigating Judges’ Order Reconsidering the Pre-Trial Chamber’s Decision on Nuon Chea and Ieng Sary’s Appeal Against the OCIJ Order on Requests to Summon Witnesses, D314/1/10, June 21, 2010. 237. PTC, Further Written Submissions in the Appeal Against the OCIJ Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses, D314/2/9, June 22, 2010. 238. PTC, (Redacted) Second Decision on Nuon Chea and Ieng Sary’s Appeal Against OCIJ Order on Requests to Summon Witnesses, D314/2/10, September 9, 2010, ¶ 41. 239. (Redacted) Second Decision, Opinion of Judges Catherine Marchi-Uhel and Rowan Downing, 19–23, ¶ 5. 240. (Redacted) Second Decision, ¶ 10, 12. 241. (Redacted) Second Decision, Opinion of Judges Prak Kimsan, Ney Thol and Huot Vuthy, 24–27, ¶ 7. 242. (Redacted) Second Decision, ¶ 10. 243. James O’Toole, “KRT denies inquiry request from the defense: Tribunal defense teams cry foul on ruling,” Phnom Penh Post, September 13, 2010. 244. O’Toole, “KRT denies inquiry request from the defense.” 245. PTC, Application for the Disqualification of Judge You Bunleng, Doc. No. 1, June 17, 2010. 246. PTC, Defence for Ieng Thirith Adoption of Defence for Nuon Chea’s “Application for Disqualification of Judge You Bunleng” of 17 June 2010, Doc. No. 2, June 22, 2010. 247. PTC, Second Request for Investigation, D384.1, July 7, 2010. 248. OCIJ, Second Request for Investigation, D384, July 7, 2010. 249. Douglas Gillison, “Nuon Chea Team Accuses You Bunleng of Political Bias,” Cambodia Daily, June 28, 2010; Douglas Gillison, “Nuon Chea Lawyers Renew Call for Political Inquiry,” Cambodia Daily, July 9, 2010; Sebastian Strangio, “Lawyers call for KRT probe,” Phnom Penh Post, July 9, 2010. 250. PTC, Directive on Classification of Pre-Trial Chamber Documents, Doc. No. 4, September 9, 2010. 251. PTC, (Redacted) Decision on Application for Disqualification of Judge You Bunleng, Doc. No. 8, September 10, 2010. 252. James O’Toole, “KRT lawyers appeal to UN,” Phnom Penh Post, November 12, 2010. 253. Kong Sothanarith, “Nuon Chea Defense Seeks End to ‘Political Interference,’ ” VOA, November 15, 2010.

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254. Douglas Gillison, “Nuon Chea Team requests UN to interject,” Cambodia Daily, November 12, 2010. 255. TC, Transcript of Initial Hearing, Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan, E1/4.1, June 27, 2011, 14. 256. TC, Transcript of Initial Hearing, Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan, E1/4.1, June 27, 2011, 15. 257. TC, Transcript of Initial Hearing, Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan, E1/4.1, June 27, 2011, 15–16. 258. TC, Transcript of Initial Hearing, Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan, E1/4.1, June 27, 2011, 17. 259. TC, Response to the Opening Statement by the Prosecutor, E146.1, November 23, 2011, 4. 260. TC, Response to the Opening Statement by the Prosecutor, E146.1, November 23, 2011, 5. 261. Author’s interview with Michiel Pestman, March 13, 2016. 262. Author’s interview with Michiel Pestman, March 13, 2016. 263. Author’s interview with Michiel Pestman, March 13, 2016. 264. OCIJ, Co-Prosecutors’ Rule 66 Final Submission [Public Redacted Version], D390, August 16, 2010. 265. OCIJ, Closing Order, D427, September 15, 2010. 266. Julia Wallace, “Cambodia’s trial of the century has begun . . . again,” International Justice Tribune, October 22, 2014. Admittedly it was early in the century for such a claim, but . . . 267. TC, Severance Order pursuant to Internal Rule 89ter, E124, September 12, 2011. 268. SCC, Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chambers Decision concerning the Scope of Case 002/01, E163/5/1/13, February 8, 2013. 269. Author’s interview with confidential ECCC informant, 16 February 2013. 270. “Khmer Rouge ‘First Lady’ in Cambodia court tirade,” AFP, February 24, 2009. 271. Author’s contemporaneous notes, June 10, 2008. 272. Author’s contemporaneous notes, November 19, 2011. 273. Author’s contemporaneous notes, November 19, 2011. 274. Mary Kozlovski, “Ieng Thirith unfit,” Phnom Penh Post, November 18, 2011. 275. Author’s contemporaneous notes, November 19, 2011. 276. OCP, Co-Prosecutors Request for Stay of Release of Accused IENG Thirith, E138/1/2, November 18, 2011. 277. OCP, Co-Prosecutors’ Supplementary Submissions on Appeal Concerning the Release of Accused IENG Thirith, E138/1/4, November 22, 2011. 278. SCC, Decision on Immediate Appeal against the Trial Chamber’s Order to Release the Accused IENG Thirith, E138/1/7, December 13, 2011. 279. Joe Freeman, “Ieng Thirith walks free,” Phnom Penh Post, September 16, 2012. 280. Vong Sokheng, “Final Send-off for Thirith,” Phnom Penh Post, August 24, 2015. 281. Kong Sothanarith, “Nuon Chea Team Files Complaint Against Hun Sen, Others,” VOA, October 24, 2011. 282. Prak Chan Thul, “Cambodian PM faces lawsuit for ‘killing fields’ trial ‘meddling,’ ” Reuters, October 24, 2011. 283. Yun Samean, “Hun Sen’s gov’t: Lawsuit by Nuon Chea’s lawyers is a joke,” Radio Free Asia, October 26, 2011.

402 8. GENOCIDE JUSTICE

284. Bridget Di Certo, “Nuon Chea team blasts prosecutor,” Phnom Penh Post, November 4, 2011; Julia Wallace, “Judges refuse Nuon Chea’s request to hold off on trial,” Cambodia Daily, November 7, 2011. 285. Kuch Naren and Julia Wallace, “Meddling suit against Hun Sen dismissed,” Cambodia Daily, December 13, 2011. 286. TC, Transcript of Trial Proceedings, E1/14.1, November 22, 2011, 72. 287. TC, Transcript of Trial Proceedings, E1/14.1, November 22, 2011, 72–73. 288. Pestman’s opening argument was ultimately entered into the court record by the TC. TC, Response to the Opening Statement by the Prosecutor, E146.1, November 23, 2011. 289. TC, Response to the Opening Statement by the Prosecutor, E146.1, November 23, 2011, 2. 290. TC, Response to the Opening Statement by the Prosecutor, E146.1, November 23, 2011, 3. 291. TC, Transcript of Trial Proceedings, E1/14.1, November 22, 2011, 77. 292. TC, Transcript of Trial Proceedings, E1/14.1, November 22, 2011, 101. 293. TC, Request for information related to ex-parte meetings between Judge Cartwright, Andrew Cayley and/or Knut Rosandhaug, E137, November 4, 2011. 294. Letter from the UNAKRT Coordinator to Co-Lawyers for Ieng Sary, November 7, 2011. 295. TC, Urgent Application for Disqualification of Judge Cartwright, E137/2, November 21, 2011. 296. TC, Ieng Sary’s Request for Investigation Concerning Ex Parte Communications Between the International Co-Prosecutor, Judge Cartwright and Others, E137/3, November 24, 2011. 297. TC, Decision on Motions for Disqualification of Judge Silvia Cartwright, E137/5, December 2, 2011, ¶ 19. 298. SCC, Ieng Sary’s appeal against the Trial Chamber’s decision on motions for disqualification of Judge Silvia Cartwright, E137/5/1/1, January 5, 2012. 299. SCC, Decision on Ieng Sary’s appeal against the Trial Chamber’s decision on motions for the disqualification of Judge Silvia Cartwright, E137/5/1/3, April 17, 2012. 300. Author’s contemporaneous notes, December 15, 2011. 301. TC, Transcript of Trial Proceedings, E1/21.1, December 13, 2011, 31. 302. TC, Transcript of Trial Proceedings, E1/232.1, October 22, 2013, 29. 303. Tang Chhin Sothy, “Cambodia’s Khmer Rouge Trials Are a Shocking Failure,” Time.com, February 13, 2014. 304. TC, Transcript of Trial Proceedings, E1/343.1, September 8, 2015, 24. 305. Alessandro Sassoon, “Defence pushes Hun Sen link,” Phnom Penh Post, September 10, 2015. 306. Author’s interview with Michael Karnavas, Phnom Penh, June 7, 2016. 307. Author’s interview with Michael Karnavas, Phnom Penh, June 7, 2016. 308. A detailed account of the PRT is in chapter 2 of Craig Etcheson, After the Killing Fields: Lessons from the Cambodian Genocide (New York: Praeger, 2005). 309. Etcheson, After the Killing Fields, chapter 2. 310. OCIJ, Provisional Detention Order, C22, November 14, 2007, ¶ 7–10.

403 8. GENOCIDE JUSTICE

311. PTC, Decision on Appeal Against Provisional Detention Order of Ieng Sary [Redacted], C22/I/74, October 17, 2008, 53. 312. PTC, Ieng Sary’s Appeal Against the Closing Order, D427/1/6, October 25, 2010. 313. PTC, Decision on Ieng Sary’s Appeal Against the Closing Order, D427/1/30, April 11, 2011, ¶ 175. 314. TC, Summary of Ieng Sary’s Rule 89 Preliminary Objections & Notice of Intent of Noncompliance with Future Informal Memoranda Issued in Lieu of Reasoned Decisions Subject to Appellate Review, E51/4, February 25, 2011, ¶ 23. 315. TC, Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), E51/15, November 3, 2011, ¶ 23, 30–36. 316. SCC, Ieng Sary’s Appeal Against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), E51/15/1/1, December 5, 2011. 317. SCC, Decision on Ieng Sary’s Appeal Against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), E51/15/1/2, March 20, 2012. 318. SCC, Decision on Ieng Sary’s Appeal Against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon), E51/15/1/2, March 20, 2012. 319. SCC, Dissenting Opinion of Judges Klonowiecka-Milart and Jayasinghe, E51/15/1/2.1, March 20, 2012, ¶ 4. 320. Author’s interview with Michael Karnavas, Phnom Penh, June 7, 2016. 321. Author’s interview with Michael Karnavas, Phnom Penh, June 7, 2016. 322. TC, Submissions by Mr. Khieu Samphan’s Defense Regarding the Questioning of the Accused, E288/4, July 5, 2013, ¶ 4. 323. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 62–68. 324. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 71. 325. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 73. 326. TC, Transcript of Trial Proceedings, E1/232.1, October 22, 2013, 5–6. 327. TC, Transcript of Trial Proceedings, E1/232.1, October 22, 2013, 24. 328. TC, Transcript of Trial Proceedings, E1/232.1, October 22, 2013, 28–29. 329. TC, Transcript of Trial Proceedings, E1/232.1, October 22, 2013, 55. 330. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 10. 331. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 27. 332. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 36. 333. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 44. 334. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 44. 335. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 72. 336. Author’s contemporaneous notes, October 31, 2013. 337. When the Trial Chamber delivered its judgment in August 2014, a revised count included three experts, 53 fact witnesses, five character witnesses, and 31 civil parties. TC, Transcript of Trial Proceedings, E1/241.1, August 7, 2014, 5. 338. In its verdict, the Trial Chamber revised these figures, finding it had examined 5,800 documents, and that the trial record comprised more than 222,000 pages in three languages. Author’s contemporaneous notes, August 7, 2014. 339. TC, Transcript of Trial Proceedings, E1/237.1, October 31, 2013, 75.

404 8. GENOCIDE JUSTICE

340. TC, Case 002/01 Judgement, E313, August 7, 2014. 341. TC, Transcript of Trial Proceedings, E1/241.1, August 7, 2014, 35. 342. TC, Transcript of Trial Proceedings, E1/241.1, August 7, 2014, 35. 343. Sok Khemara, “Tribunal Must Consider Reparations: Victim,” VOA, August 27, 2010. 344. TC, Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Indication of Priority Projects for Implementation as Reparation, E218/7, December 3, 2012. 345. TC, Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Trial Chamber’s Response to the Lead Co-Lawyers Initial Specification of Civil Party Priority Projects as Reparations pursuant to Rule 80bis(4), E218/7/2, August 1, 2013. 346. TC, Civil Party Lead Co-Lawyers’ Response to the Trial Chamber’s Memorandum E218/7/2 Concerning Reparations Projects for Civil Parties in Case 002/01, with Confidential Annexes, E218/7/3, August 23, 2013; TC, Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Trial Chamber’s Subsequent and Final Order on the Updated Specification of Civil Party Priority Projects as Reparations pursuant to Rule 80bis(4), E218/7/4, September 6, 2013; TC, Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Request for Clarification on Reparations Projects, E218/7/7, December 19, 2013; TC, Deuxième complément d’informations à la demande définitive de réparations des coavocats principaux pour les parties civiles en application de la règle 80bis du Règlement intérieur et annexes confidentielles, E218/7/8, March 31, 2014. 347. TC, Case 002/01 Judgement, E313, August 7, 2014, 597–621. 348. SCC, Co-Prosecutors’ Notice of Appeal of a Decision in Case 002/01, E313/3/1, September  29, 2014; SCC, Notice of Appeal Against the Judgment in Case 002/01, E313/1/1, September 29, 2014. 349. SCC, Co-Prosecutors’ Appeal Against the Judgment of the Trial Chamber in Case 002/01, F11, November 28, 2014. 350. SCC, Mr. Khieu Samphan’s Defence Appeal Brief Against the Judgement in Case 002/01, F17, December 29, 2014; SCC, Nuon Chea’s Appeal Against the Judgement in Case 002/01 (Redacted), F16, December 29, 2014. 351. Co-Prosecutor’s Appeal, ¶ 2. Joint Criminal Enterprise (JCE) is a theory of criminal liability elaborated at the ICTY, and it consists of three “modes” or types of liability, applied to groups of individuals who cooperate to commit crimes. The first or “basic” mode encompasses activities like planning crimes; the second or “systematic” mode encompasses the creation and operation of institutions such as concentration camps; the third or “extended” mode encompasses crimes that, while they were not integral to the original common criminal plan, were “foreseeable” consequences of that plan. The PTC ruled that the extended mode of JCE liability was not applicable at the KRT, and the Trial Chamber had declined to reverse that ruling, so OCP appealed this issue to the Supreme Chamber. 352. Nuon Chea’s Appeal, ¶ 1. 353. SCC, Transcript of Appeal Proceedings, F1/1.1, July 2, 2015, 2.

405 8. GENOCIDE JUSTICE

354. SCC, Transcript of Appeal Proceedings, F1/1.1, July 2, 2015, 2; SCC, Transcript of Appeal Proceedings, F1/2.1, July 3, 2015; SCC, Transcript of Appeal Proceedings, F1/3.1, July 6, 2015. 355. SCC, Transcript of Appeal Proceedings, F1/4.1, November 17, 2015. 356. Anthony Jensen, “Nuon Chea’s Defense Stages Walkout at Tribunal,” Cambodia Daily, Nov. 18, 2015. 357. SCC, Transcript of Appeal Proceedings, F1/4.1, November 17, 2015, 39. 358. SCC, Transcript of Appeal Proceedings, F1/5.1, February 16, 2016, 2–3. 359. SCC, Transcript of Appeal Proceedings, F1/6.1, February 17, 2016; SCC, Transcript of Appeal Proceedings, F1/7.1, February 18, 2016. 360. SCC, Appeal Judgement, F36, November 23, 2016, 519. 361. SCC, Appeal Judgement, F36, November 23, 2016, 519, ¶ 541, finding that the prosecution had failed to prove that the killings of Khmer Republic soldiers and officials during the evacuation of Phnom Penh reached the requisite scale to constitute extermination, and that they had also failed to demonstrate the requisite intent on the part of the accused. 362. SCC, Appeal Judgement, F36, November 23, 2016, 519, ¶ 557, 560, giving the same reasoning as above. 363. SCC, Appeal Judgement, F36, November 23, 2016, 519, ¶ 705–706, finding that the charge “was not sufficiently supported by evidence.” 364. Author’s contemporaneous notes, October 31, 2013. 365. TC, Transcript of Proceedings, E1/238.1, December 11, 2013, 2. 366. SCC, Decision on Immediate Appeals against Trial Chamber’s Second Decision on Severance of Case 002, E284/4/8, November 2, 2013, ¶ 74. 367. TC, Transcript of Proceedings, E1/238.1, December 11, 2013; TC, Transcript of Proceedings, E1/238.2, December 12, 2013. 368. TC, President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial Chamber to Try the Remaining Charges in Case 002, E301/4, December 20, 2013. 369. TC, Transcript of Proceedings, E1/239.1, February 11, 2014. 370. TC, Decision on Additional Severance of Case 002 and Scope of Case 002/02, E301/9/1, April 4, 2014. 371. TC, Decision on Additional Severance of Case 002 and Scope of Case 002/02, E301/9/1, April 4, 2014, ¶ 39. 372. TC, Transcript of Proceedings, E1/242.1, October 17, 2014. 373. TC, Transcript of Proceedings, E1/243.1, October 21, 2014. 374. TC, Memorandum from Trial Chamber President Nil Nonn to All Parties entitled Warning to counsel for Nuon Chea and Khieu Samphan, E320, October 24, 2014. 375. TC, Email of Notice and Requests for Prospective Motion for Disqualification, E314.1, August 11, 2014; TC, Mr. Khieu Samphan’s Request for Reconsideration of the Need to Await Final Judgment in Case 002/01 before Commencing Case 002/02 and the Appointment of a New Panel of Trial Judges, E314/1, August 24, 2014; TC, Renewed Application for Disqualification of the Current Judges of the Trial Chamber Who Are to Hear Case 002/02, E314/8, October 10, 2014. 376. TC, Transcript of Proceedings, E1/244.1, October 28, 2014.

406 8. GENOCIDE JUSTICE

377. TC, Memorandum from Trial Chamber President Nil Nonn to All Parties entitled Ruling following TMM of 28 October 2014, E320/1, October 31, 2014. 378. TC, Decision on Applications for Disqualification of Trial Chamber Judges, E314/12, November 14, 2014. 379. TC, Transcript of Proceedings, E1/245.1, November 17, 2014. 380. TC, Transcript of Proceedings, E1/246.1, November 24, 2014. 381. TC, Order to Refer Conduct of Counsel for Khieu Samphan to Appropriate Professional Bodies, E330, December 19, 2014. 382. TC, Decision on the Appointment of Court Appointed Standby Counsel for Khieu Samphan, E321/2, December 5, 2014. 383. TC, Transcript of Proceedings, E1/337.1, August 26, 2015; TC, Transcript of Proceedings, E1/338.1, August 27, 2015. Victor Koppe was sanctioned by the Trial Chamber for his walkout; TC, Memorandum from Trial Chamber President Nil Nonn to Dean of the Amsterdam Bar Association entitled Possible Misconduct of a Lawyer Admitted to Your Bar Association, E378, December 11, 2015. The Trial Chamber complained to Koppe’s Bar Association about his behavior again two months later; TC, Memorandum from Trial Chamber President Nil Nonn to Dean of the Amsterdam Bar Association entitled Addendum—Possible Misconduct of a Lawyer Admitted to Your Bar Association—Mr. Victor Koppe, E378.1, February 19, 2016. 384. George Wright, “KR Wanted an Ethnically ‘Pure’ Society, Tribunal Witness Says,” Cambodia Daily, September 10, 2015. 385. Alessandro Sassoon, “Cham massacre recounted,” Phnom Penh Post, September 16, 2015; TC, Transcript of Proceedings, E1/346.1, September 14, 2015; TC, Transcript of Proceedings, E1/347.1, September 15, 2015. 386. TC, Transcript of Trial Proceedings, E1/522.1, June 15, 2017, 81. 387. Robert Carmichael, “Cambodia War Crimes Court Hears Evidence in Genocide Case,” VOA, September 7, 2015; TC, Transcript of Proceedings, E1/342.1, September 7, 2015. 388. George Wright, “Ta Mok’s In-Law Tells Tribunal of Rounding Up Vietnamese,” Cambodia Daily, January 29, 2016; TC, Transcript of Proceedings, E1/384.1, January 28, 2016, 24–55. 389. George Wright, “Scholars’ Understanding of Genocide Questioned at ECCC,” Cambodia Daily, February 27, 2016. 390. George Wright, “Pol Pot Speech Signaled ‘Successful Genocide,’ ” Cambodia Daily, March 16, 2016; TC, Transcript of Proceedings, E1/402.1, March 1, 2016, 50. 391. James Reddick, “Khmer Rouge Trial Focuses on Abuse of Vietnamese,” Khmer Times, December 8, 2015; Communist Party of Kampuchea, Revolutionary Flag, April 1976, D243/2.1.4, 5. 392. Since proceedings had commenced in Case 002/02, 181 of the civil parties had died. 393. TC, Transcript of Trial Proceedings, E1/520.1, June 13, 2017. 394. TC, Transcript of Trial Proceedings, E1/521.1, June 14, 2017. 395. TC, Transcript of Trial Proceedings, E1/521.1, June 14, 2017; TC, Transcript of Trial Proceedings, E1/522.1, June 15, 2017. 396. Transcript of Trial Proceedings, June 15, 2017. 397. Transcript of Trial Proceedings, June 15, 2017, 118. 398. TC, Transcript of Trial Proceedings, E1/523.1, June 16, 2017. 399. TC, Transcript of Trial Proceedings, E1/523.1, June 16, 2017, 84.

407 9. JUSTICE DENIED

400. TC, Transcript of Trial Proceedings, E1/524.1, June 19, 2017, 49. 401. TC, Transcript of Trial Proceedings, E1/524.1, June 19, 2017, 37. 402. TC, Transcript of Trial Proceedings, E1/525.1, June 20, 2017, 9. 403. Transcript of Trial Proceedings, June 20, 2017; TC, Transcript of Trial Proceedings, E1/526.1, June 21, 2017. 404. Transcript of Trial Proceedings, June 21, 2017, 55. 405. Transcript of Trial Proceedings, June 21, 2017, 55. 406. TC, Transcript of Trial Proceedings, E1/527.1, June 22, 2017. 407. TC, Transcript of Trial Proceedings, E1/527.1, June 22, 2017, 38. 408. TC, Transcript of Trial Proceedings, E1/527.1, June 22, 2017, 61. 409. TC, Transcript of Trial Proceedings, E1/528.1, June 23, 2017, 5. 410. TC, Transcript of Trial Proceedings, E1/528.1, June 23, 2017, 37–38. 411. TC, Transcript of Trial Proceedings, E1/528.1, June 23, 2017, 40. 412. TC, Transcript of Trial Proceedings, E1/528.1, June 23, 2017, 42. 413. OA, Completion Plan, Revision 15, December 31, 2018, ¶ 46. 414. TC, Press Release: NUON Chea and KHIEU Samphan Sentenced to Life Imprisonment in Case 002/02, November 16, 2018. 415. TC, Nuon Chea’s Notice of Appeal Against the Trial Judgement in Case 002/02, E465/ 3/1, July 1, 2019; “Khmer Rouge leaders appeal their convictions,” NHK, July 5, 2019. 416. George Wright, “Nuon Chea: Cambodia’s unrepentant perpetrator of genocide,” BBC, August 6, 2019. 417. William Schabas, “Cambodia: Was It Really Genocide?” Human Rights Quarterly 23, no.  2 (May  1999): 470–477; William Schabas, “Problems of International Codification—Were the Atrocities in Cambodia and Kosovo Genocide,” New England Law Review 35, no. 2 (2000–2001): 287–302; William Schabas, “Should Khmer Rouge Leaders Be Prosecuted for Genocide or Crimes Against Humanity?” Searching for the Truth, Documentation Center of Cambodia, October 2001. 418. Gregory Stanton, “The Cambodian Genocide and International Law,” in Genocide and Democracy in Cambodia, ed. Ben Kiernan (New Haven, CT: Yale University Southeast Asia Studies, 1993), 141–161; Gregory Stanton, “The Khmer Rouge Did Commit Genocide,” Searching for the Truth, Documentation Center of Cambodia, November 2001.

9. JUSTICE DENIED 1. Author’s contemporaneous notes, November 21, 2007. 2. Erika Kinetz, “Cambodian Justice Moves Forward,” Christian Science Monitor, November 21, 2007. 3. Author’s contemporaneous notes, December 16, 2007. 4. Di Thin, an ethnic Tampuon, was secretary of Sector 101 during most of the Khmer Rouge regime and a member of the Northeast Zone Committee at least by late 1978. He was killed in a vehicle crash in late 2007. 5. Author’s contemporaneous notes, March 16, 2008. 6. See chapter 8, “Grilling the Elephant.” 7. Erika Kinetz, “ECCC to Name More Defendants: Prosecutor,” Cambodia Daily, June 13, 2008. 8. Kinetz, “ECCC to Name More Defendants.”

408 9. JUSTICE DENIED

9. PTC, Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement Between the Co-Prosecutors pursuant to Internal Rule 71, Opinion of Judges: Prak Kimsan, Ney Thol and Huot Vuthy, (no document number), August 18, 2008, 3/11, ¶ 10. 10. Author’s contemporaneous notes, August 26, 2008. 11. Author’s contemporaneous notes, September 17, 2008. 12. Author’s contemporaneous notes, October 7, 2008. 13. Author’s contemporaneous notes, October 7, 2008. 14. My colleague in OCP’s Investigation, Analysis and Research Unit, Steve Spargo, did extraordinary work ascertaining the facts of Van Rith’s role and crimes during the Khmer Rouge regime. 15. PTC, International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to Rule 71(2), Doc. No. 1, December 3, 2008. 16. This suspect, Van Rith, the DK Minister of Commerce, was withdrawn from the First Introductory Submission at the insistence of the national co-prosecutor. He died of natural causes on November 10, 2008. 17. PTC, Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement Between the Co-Prosecutors pursuant to Internal Rule 71, (no document number), August 18, 2008, ¶ 6. 18. PTC, Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement, ¶ 41. 19. PTC, Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement, ¶ 29. 20. PTC, Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement, ¶ 31–7. 21. PTC, Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement, ¶ 38. 22. Considerations of the Pre-Trial Chamber, Opinion of Judges: Prak Kimsan, Ney Thol and Huot Vuthy, August 18, 2008, 2/11, ¶ 4. 23. Considerations of the Pre-Trial Chamber, Opinion of Judges: Prak Kimsan, Ney Thol and Huot Vuthy, August 18, 2008, 2/11, ¶ 30. 24. Considerations of the Pre-Trial Chamber, Opinion of Judges Lahuis and Downing, August 18, 2008, ¶ 14. 25. Considerations of the Pre-Trial Chamber, Opinion of Judges Lahuis and Downing, August 18, 2008, ¶ 29. 26. Statement of the Acting International Co-Prosecutor, Submission of Two New Introductory Submissions, September 8, 2009. International Co-Prosecutor Robert Petit had resigned one week earlier for personal reasons. 27. “Cambodian PM: KRouge trials may ignite war,” AFP, September 7, 2009. 28. “Cambodian PM opposes more Khmer Rouge arrests,” AP, September 8, 2009. 29. “Prime Minister warns Khmer Rouge tribunal,” AFP, September 9, 2009. 30. The Second and Third Introductory Submissions were leaked to the media in June 2011 and have been widely publicized. 31. Kong Sothanarith, “Before More Investigation, Case Two: Tribunal Judge,” VOA, May 31, 2010. 32. Marcel Lemonde, Un Juge Face au Khmers Rouges (Paris: Editions du Seuil, 2013), 184. Translations by author.

409 9. JUSTICE DENIED

33. Lemonde, Un Juge, 184. 34. Lemonde, Un Juge, 198. 35. Douglas Gillison, “Khmer Rouge Tribunal judge backs out of new inquiries,” Cambodia Daily, June  10, 2010; Sebastian Strangio, “KRT judges divided on next cases,” Phnom Penh Post, June 10, 2010. 36. Lemonde, Un Juge, 194–196. 37. Lemonde, Un Juge, 198. 38. OCIJ, Closing Order, D427, September 15, 2010. 39. Michelle Fitzpatrick, “Khmer Rouge tribunal faces uphill struggle with second trial,” AFP, September 18, 2010; Kong Sothanarith, “Tribunal Investigating Judge Leaves After Indictments,” VOA, September 27, 2010. 40. Confidential communication from an international ECCC official, May 27, 2011. 41. Diplomatic cable from U.S. Ambassador to Cambodia Carol Rodley to the U.S. Department of State entitled “Friends of the ECCC Discuss Budget and Judicial Calendar,” January 14, 2010. 42. Douglas Gillison, “UN’s point man on KRT due to arrive for talks,” Cambodia Daily, September 1, 2010. 43. Cheang Sokha and James O’Toole, “Hun Sen shoots from the lip: Cases after 002 face embargo,” Phnom Penh Post, October 28, 2010. 44. Author’s contemporaneous notes, May 27, 2011. 45. OA, Press Release: Dr.  Siegfried Blunk Appointed as New International CoInvestigating Judge, December 1, 2010. 46. PTC, Considerations of the Pre-Trial Chamber regarding the International CoProsecutor’s Appeal against the Decision on Re-Filing of Three Investigative Requests (Public Redacted Version), D26/1/1, November 15, 2011, 14. 47. Douglas Gillison, “Justice Denied,” Foreign Policy, November 23, 2011. 48. OSJI, “Recent Developments at the Extraordinary Chambers in the Courts of Cambodia,” June 2011, 12. 49. Gillison, “Justice Denied.” 50. Author’s contemporaneous notes, May 1, 2011. 51. OA, Statement from the Office of Co-Investigating Judges, April 29, 2011. 52. Author’s contemporaneous notes, May 13, 2011. 53. OCP, Statement by the International Co-Prosecutor regarding Case File 003, May 9, 2011. 54. OCIJ, Order on International Co-Prosecutor’s Public Statement Regarding Case File 003, D14, May 18, 2011. 55. OA, Statement from the Co-Investigating Judges, May 18, 2011. 56. PTC, International Co-Prosecutor’s Appeal against the “Order on the International Co-Prosecutor’s Public Statement regarding Case File 003,” D14/1/1, May 25, 2011. 57. Douglas Gillison, “Judges consider contempt action over case 003,” Cambodia Daily, May 13, 2011; “Cambodia war crimes judge threatens suit against prosecutor,” DPA, May 13, 2011; “In Turbulent Week for Tribunal, Rising Concerns,” VOA, May 13, 2011; “Judges at war crimes court demand retraction in sensitive case,” DPA, May 18, 2011; Kong Sothanarith, “Judges Order Retraction from Tribunal Prosecutor,” VOA, May 18, 2011; Michelle Fitzpatrick, “KRouge court ‘damaged’ by new case row,” AFP, May  22, 2011; James O’Toole, “Appeal planned by KRT

410 9. JUSTICE DENIED

prosecutors,” Phnom Penh Post, May 23, 2011; Sok Khemara, “Legitimacy of Tribunal at Stake: Legal Observers,” VOA, May 24, 2011. 58. PTC, Considerations of the Pre-Trial Chamber Regarding the International CoProsecutor’s Appeal Against the Co-Investigating Judges’ Order on International Co-Prosecutor’s Public Statement Regarding Case 003 [Redacted], D14/1/3, October 24, 2011. 59. OA, Statement by the International Co-Prosecutor Regarding the Co-Investigating Judges’ Retraction Order in Case 003, October 27, 2011. 60. Letter from International Legal Unit, Office of Co-Investigating Judges, to Ban Kimoon, Secretary-General of the United Nations, regarding Close of the Investigation into Case File 003, April 29, 2011. 61. Author’s contemporaneous notes, May 12, 2011. 62. Letter from Steve Heder to Judge Siegfried Blunk, May 5, 2011. 63. Gillison, “Justice Denied.” 64. Letter from UN Legal Counsel Patricia O’Brien to Ignacio Tredici, International Team Leader, Legal Unit, Office of Co-Investigating Judges, June 22, 2011. 65. “UN staff quit war crimes court as fallout continues over third case,” DPA, June 13, 2011. 66. OA, Public Statement by Co-Investigating Judges, June 12, 2011. 67. Documentation Center of Cambodia, Promoting Accountability Project, Interviews with El Pheap, Youk Neam, Bin Nann, Rin Kheng and Thip Samphatt, Field Trip Note by Long Dany, no date (September 11, 2011). 68. Gillison, “Justice Denied.” 69. OA, Public Statement by National Co-Investigating Judge, March 26, 2012. “Rogatory letters” are how co-investigating judges assign investigative tasks to their staff. 70. Author’s contemporaneous notes, October 6, 2011. 71. OSJI, “Recent Developments at the Extraordinary Chambers in the Courts of Cambodia,” June 2011, 11. 72. PTC, Considerations of the Pre-Trial Chamber regarding the International CoProsecutor’s Appeal against the Decision on Re-Filing of Three Investigative Requests, Opinion of Judges Lahuis and Downing (Public Redacted Version), D26/1/3, November 15, 2011, 6. 73. Author’s contemporaneous notes, May 1, 2011. 74. PTC, Considerations of the Pre-Trial Chamber regarding the Appeal against Order on the Admissibility of Civil Party Applicant Robert Hamill, D11/2/4/4, October 24, 2011, 4–5, ¶ 9. 75. Considerations of the Pre-Trial Chamber, Opinion of Judges Lahuis and Downing, October 24, 2011, 9, ¶ 13. 76. Considerations of the Pre-Trial Chamber, Opinion of Judges Lahuis and Downing, October 24, 2011, 11, ¶ 14. 77. Considerations of the Pre-Trial Chamber, Opinion of Judges Lahuis and Downing, October 24, 2011, 11, ¶ 15. 78. After Blunk’s resignation, the “Office of Co-Investigating Judges”—presumably meaning Judge Bunleng—issued a statement insisting that the replacement of the documents in the case file was a normal correction in line with the practice directions. OA, Statement of the Co-Investigating Judges, October 26, 2011.

411 9. JUSTICE DENIED

79. Gillison, “Justice Denied.” 80. Gillison, “Justice Denied.” 81. OSJI, “Developments,” June 2011, 13. 82. Author’s confidential conversation with an OCIJ official. 83. Bridget Di Certo, “Controversial KRT judge resigns,” Phnom Penh Post, October 10, 2011. 84. OA, Press Statement by National Co-Investigating Judge, March 26, 2012. 85. OA, Statement by the International Co-Investigating Judge, October 10, 2011. 86. Thin Lei Win, “Khmer Rouge trial judges must go—rights group,” Alertnet, October 3, 2011. 87. “Judge in UN-Backed Cambodian Court Pledges to Press On after Colleague Resigns,” UN News, October 12, 2011. 88. Kong Sothanarith, “Leading Researcher Calls on UN to Investigate Tribunal Judges Office,” VOA, October 12, 2011. 89. OSJI Press Release, October 11, 2011. 90. “Rights groups urge UN action over KRouge court,” AFP, October 11, 2011. 91. Patricia O’Brien, “The U.N. and the Khmer Rouge Trials,” International Herald Tribune, October 18, 2011. 92. Chun Sakada, “UN Warns Officials To Stop Remarks Opposing Tribunal Cases,” VOA, October 21, 2011. 93. Chun Sakada, “UN Warns Officials To Stop Remarks Opposing Tribunal Cases.” 94. Jeffrey A. Meyer and Mark G. Califano, Good Intentions Corrupted: The Oil-forFood Program and the Threat to the U.N. (New York: Public Affairs, 2010). 95. Judge Kasper-Ansermet’s Twitter account is @LKasperAnsermet. 96. Andrew Buncombe, “Judge quits Cambodia genocide tribunal,” The Independent, October 10, 2011. 97. OCIJ, Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004, D38, March 21, 2012 (hereinafter, “Egregious Dysfunctions”). 98. Egregious Dysfunctions, ¶ 18. 99. Egregious Dysfunctions, ¶ 19. 100. OA, Press Release by the International Reserve Co-Investigating Judge, December 6, 2011. 101. OA, Press Statement of the National Co-Investigating Judge, December 6, 2011. 102. Douglas Gillison, “Genocide Judges Duel it Out in Phnom Penh,” The Investigative Fund, December 6, 2011; Bridget Di Certo, “Terse beginning to new relationship among KR tribunal judges,” Phnom Penh Post, December 7, 2011. 103. Julia Wallace, “Arrival of New Judge Marked by Infighting,” Cambodia Daily, December 7, 2011. 104. RGC, Council of Ministers, Press and Quick Reaction Unit, Press Statement, January 12, 2012. 105. RGC, Council of Ministers, Press and Quick Reaction Unit, Press Statement, January 12, 2012. 106. Egregious Dysfunctions, ¶ 20. 107. PTC, Opinion of Pre-Trial Chamber Judges Downing and Chung on the Disagreement between the Co-Investigating Judges pursuant to Rule 72 (hereinafter,

412 9. JUSTICE DENIED

“Opinion of Downing and Chung pursuant to Rule 72”), Attachment 2(a), February 10, 2012, ¶ 10. 108. Opinion of Downing and Chung pursuant to Rule 72, ¶ 14(i). 109. Opinion of Downing and Chung pursuant to Rule 72, ¶ 14(ii). 110. Opinion of Downing and Chung pursuant to Rule 72. 111. Opinion of Downing and Chung pursuant to Rule 72, ¶ 38. 112. Opinion of Downing and Chung pursuant to Rule 72, ¶ 47. 113. Opinion of Downing and Chung pursuant to Rule 72, ¶ 50. 114. Julia Wallace, “New KRT Judge: I will assume this mission,” Cambodia Daily, February 15, 2012. 115. “Notifying” in this context means distributing relevant documents to the Parties in the legal proceeding. 116. Egregious Dysfunctions, ¶ 34. 117. Egregious Dysfunctions, ¶ 44–47. 118. Egregious Dysfunctions, ¶ 41–43. 119. Egregious Dysfunctions. 120. Egregious Dysfunctions, ¶ 48–50. 121. OCIJ, Application for Disqualification of Judge Prak Kimsan, President of the PreTrial Chamber, pursuant to Rule 34(2) of the ECCC Internal Rules, February 8, 2012. 122. Opinion of Downing and Chung pursuant to Rule 72. 123. Egregious Dysfunctions, ¶ 30. 124. Egregious Dysfunctions, ¶ 31–32. 125. Archived on Twitter at @LKasperAnsermet. 126. Faine Greenwood, “Did Twitter Cost a Judge his Job at a UN War Crimes Tribunal?” UN Dispatch, February 6, 2012. 127. Author’s contemporaneous notes, January 22, 2012. 128. In 2018, Yet Chakriya was also promoted to become the Deputy General Prosecutor of Cambodia’s Supreme Court. 129. Author’s contemporaneous notes, January 22, 2012. 130. Douglas Gillison, “Cambodia Rejects UN Genocide Judge,” The Investigative Fund, January 15, 2012. 131. Author’s contemporaneous notes, January 20, 2012. 132. “UN protests after Cambodia blocks Khmer Rouge judge,” AFP, January 20, 2012. 133. “UN protests after Cambodia blocks Khmer Rouge judge,” AFP, January 20, 2012. 134. “UN protests after Cambodia blocks Khmer Rouge judge,” AFP, January 20, 2012. 135. “Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodia Law of Crimes Committed during the Period of Democratic Kampuchea,” June 6, 2003, Art. 28 (hereinafter, “UN-Cambodia Agreement”). 136. UN-Cambodia Agreement, Art. 5(6). 137. RGC, Council of Ministers, Joint Statement by Deputy Prime Minister His Excellency Sok An and Ambassador David Scheffer, Special Expert to the SecretaryGeneral of the United Nations, Phnom Penh, January 24, 2012. 138. Translated from Khmer by “Teuk Si Iv,” “Cambodia will pursue the KR Tribunal by itself should the UN pull out,” Free Press Magazine, January 27, 2012. (“Teuk Si Iv” is Khmer for “soy sauce.”)

413 9. JUSTICE DENIED

139. “UN insists judge ‘has authority,’ ” Radio Free Asia, January 25, 2012. 140. OCIJ, Decision to Open an Investigation for Interference with the Administration of Justice under Internal Rule 35 of the ECCC, D29, February 10, 2012. See also Egregious Dysfunctions, n. 48. 141. OA, Press Release of the Reserve International Co-Investigating Judge, May 4, 2012. 142. OA, Press Release of the International Reserve Co-Investigating Judge, March 19, 2012. 143. OA, Press Release of the International Reserve Co-Investigating Judge, March 19, 2012. 144. Egregious Dysfunctions. 145. Bridget Di Certo, “Judge decries 003, 004 ‘sabotage,’ ” Phnom Penh Post, March 22, 2012; Mary Kozlovski, “UN ‘concerned’ as Khmer Rouge tribunal judge resigns,” Deutsche Welle, March 22, 2012; Julia Wallace and Kuch Naren, “Judge Details ‘Dysfunction’ at Tribunal,” Cambodia Daily, March 22, 2012; “Khmer Rouge Judge Spells Out Grievances,” VOA, March 21, 2012; “A 2nd judge quits at U.N. tribunal,” The International Herald Tribune, March 21, 2012. 146. Abby Seiff, “KRT Defense Wants Probe of Judge’s Report,” Cambodia Daily, March 27, 2012; Kristin Lynch, “Defense takes aim at KRT ‘interference,’ ” Phnom Penh Post, March 27, 2012; Kong Sothanarith, “Tribunal Judge’s Resignation Proof of ‘Interference,’ Defense Says,” VOA, March 26, 2012; Abby Seiff, “KRT Defense Teams Call for UN Investigation,” Cambodia Daily, March 28, 2012. 147. Author’s contemporaneous notes, March 23, 2012. 148. Bridget Di Certo, “State says the KRT is a model court,” Phnom Penh Post, March 23, 2012. 149. OA, Press Statement by the National Co-Investigating Judge, March 26, 2012. 150. OA, Press Statement by the National Co-Investigating Judge, March 26, 2012. 151. OA, Press Statement by the National Co-Investigating Judge, March 26, 2012. 152. Bridget Di Certo, “KR judge fires back on security,” Phnom Penh Post, March 29, 2012. 153. Julia Wallace and Kuch Naren, “Bunleng Fights Back at Swiss Judges Accusations,” Cambodia Daily, March 27, 2012. 154. Confidential communication from international official, February 29, 2012. 155. OA, Public Statement by the Co-Prosecutors, June 5, 2012. 156. “Cambodian officials named over Khmer Rouge genocide,” The Age, June 3, 2012. 157. Author’s contemporaneous notes, June 21, 2012. See also Julia Wallace, “Nuon Chea’s defense lawyers given warning for misconduct,” Cambodia Daily, June 22, 2012; and Bridget Di Certo, “Nuon Chea’s lawyers warned over actions,” Phnom Penh Post, June 22, 2012. 158. Nuon Chea Defense Team, Press Release, June 21, 2012. 159. OSJI, “The Future of Case 003/004 at the Extraordinary Chambers in the Courts of Cambodia,” October 2012, 12. 160. OSJI, “The Future of Case 003/004 at the Extraordinary Chambers in the Courts of Cambodia,” October 2012, 13. 161. Meas Sokchea, “Opposition party president puts blame on China, Vietnam for Khmer Rouge,” Phnom Penh Post, April 1, 2012. 162. Meas Sokchea, “CNRP urges more KR cases,” Phnom Penh Post, April 18, 2013.

414 9. JUSTICE DENIED

163. Vong Sokheng and David Boyle, “Kem Sokha’s S-21 Remarks Questioned,” Phnom Penh Post, May 27, 2013. 164. Sokheng and Boyle, “Kem Sokha’s S-21 Remarks Questioned.” 165. Open letter from Sam Rainsy entitled “Hun Sen is playing an inconsistent, divisive and destructive game,” June 2, 2013. 166. “Cambodia adopts KR crime denial law,” Bangkok Post, June 7, 2013; Abby Seiff, “The denial law dilemma,” Phnom Penh Post, June 7, 2013. 167. Image posted to Facebook by Virak Ou on June 11, 2013, trans. Virak Ou, image credited to VOA, from Chum Mey’s June 8, 2013, anti-Kem Sokha protest. 168. Kong Sothanarith, “Khmer Rouge Victims Sue Opposition Lawmaker,” VOA, June 15, 2013. 169. Joe Freeman, “Genocide as pre-poll politics in Cambodia,”Asia Times Online, June 18, 2013. 170. SCC, Memorandum entitled Submission concerning 2012/13 Budget,” June 9, 2011. 171. OA, Press Release, Revised ECCC Budget for 2010–2011, February 7, 2011. 172. OA, Note to Media, ECCC Expenditures, June 20, 2011. 173. Abby Seiff, “KRT could face major layoffs, Scheffer tells staffers,” Phnom Penh Post, October 26, 2012. 174. “Khmer Rouge Tribunal Seeks $92 Million, VOA, February 23, 2012. 175. OA, Press Release, ECCC Budget for 2012–2013 Published, March 9, 2012. 176. Email from Supreme Court Judge Motoo Noguchi to Ohyoung Kwon, Chief, UNAKRT Budget and Finance Section,” February 7, 2012. 177. “Japanese Judge resigns from Khmer Rouge court in Cambodia,” Japan Economic Newswire, May 16, 2012. 178. David Scheffer, “No Way to Fund a War Crimes Tribunal,” The New York Times, August 28, 2012. 179. Shar Adams, “Khmer Rouge War Crimes Tribunal Running Out of Funds,” Epoch Times, August 16, 2012. 180. OA, Trial Chamber Reduces Number of Weekly Hearing Days in Case 002/01, October 23, 2012; Kate Bartlett, “KRT Cuts Weekly Hearings Due to Staff, Funds Shortage,” Cambodia Daily, October 24, 2012. 181. Abby Seiff, “KRT could face major layoffs, Scheffer tells staffers,” Phnom Penh Post, October 26, 2012. 182. OA, Statement by Acting Director of the Office of Administration related to lack of cash flow to pay the ECCC’s national side’s staff salary for the month of December 2012 and budget situation for 2013, December 21, 2012. 183. Senate Committee on Appropriations, 111th Cong., 1st sess., S.1434, July 9, 2009, 170. 184. Senate Committee on Appropriations, 111th Cong., 2nd sess., S.3676, July 29, 2010, 147; Senate Committee on Appropriations, 112th Cong., 1st sess., S.1601, September 22, 2011, 184–185. 185. Senate Committee on Appropriations, 112th  Cong., 2nd  sess., S.3241, May  24, 2011, 179. 186. Article 15 of the Agreement states, “Salaries and emoluments of Cambodian judges and other Cambodian personnel shall be defrayed by the Royal Government of Cambodia.” UN-Cambodia Agreement.

415 9. JUSTICE DENIED

187. Senate Committee on Appropriations, 113th Cong., 1st sess., S.1372, July 25, 2013, 175. 188. Senate Committee on Appropriations, 113th Cong., 2nd sess., S.2499, June 19, 2014, 180. 189. Senate Committee on Appropriations, 114th Cong., 1st sess., S.2130, October 5, 2015, 567. 190. Senate Committee on Appropriations, 114th Cong., 2nd sess., S.3117, June 29, 2016, 221. 191. Senate, Committee on Appropriations, 114th Cong., 2nd sess., Report 114–290, June 29, 2016, 15. 192. OCIJ, Combined Decision on the Impact of the Budgetary Situation on Case 003, 004 and 004/02 and Related Submissions by the Defense for Yim Tith [Redacted], D349/6, August 11, 2017, ¶ 44–48. 193. Email from UN Special Expert David Scheffer to Supreme Court Judge Nihal Jayasinghe entitled Note from David Scheffer, February 17, 2013; Email from UN Special Expert David Scheffer to Supreme Court Judge Nihal Jayasinghe entitled Note from Special Expert Scheffer, April 16, 2013. 194. ECCC Revised Budget Requirements—2012–2013, January 29, 2013, ¶ 3. 195. ECCC Revised Budget Requirements—2012–2013, January 29, 2013, ¶ 10(f) and 11. 196. Lauren Crothers, “National Staff Let Go at War Crimes Tribunal,” Cambodia Daily, July 4, 2013. 197. RGC, Council of Ministers, “Foreign diplomats exchange views with Cambodia over the ECCC,” May 18, 2013. 198. RGC, Council of Ministers, “Foreign diplomats exchange views with Cambodia over the ECCC,” May 18, 2013. 199. Crothers, “National Staff Let Go.” 200. Crothers, “National Staff Let Go.” 201. OA, Statement of His Excellency Mr. Kranh Tony, September 5, 2013. 202. “UN chief says Cambodia’s Khmer Rouge tribunal needs funding, staff unpaid for months,” Washington Post, August 29, 2013. 203. Ambassador David Scheffer, U.N. Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Tribunal, Statement, September 4, 2013. 204. “Cambodian government looks to donors to pay Khmer Rouge tribunal staff,” Radio Australia, September 4, 2013. 205. Vong Sokheng and Stuart White, “Little advance in KRT funding fix meetings,” Phnom Penh Post, September 4, 2013. 206. Sokheng and White, “Little advance in KRT funding fix meetings.” 207. Justine Drennan and Sopheng Cheang, “Cambodian government failure to fund court slammed,” AP, September 5, 2013. 208. “The ECCC funding crisis must be swiftly resolved,” FIDH, September 20, 2013. 209. Colin Meyn, “Political Will Lacking as Much as KRT Funding,” Cambodia Daily, September 3, 2013. 210. OA, ECCC Financial Outlook, September 30, 2013. The government also provided in-kind contributions of some $9.5 million. 211. OA, Statement by H.E. Tony Kranh, Acting Director of the Office of Administration, October 28, 2013.

416 9. JUSTICE DENIED

212. Stuart White, “KRT funding: UN team to talk finance with gov’t,” Phnom Penh Post, January 23, 2014. 213. Stuart White, “Kingdom finds another $1.1m for tribunal,” Phnom Penh Post, January 29, 2014. 214. Vong Sokheng, “Funds pledge for KRT wages,” Phnom Penh Post, November 14, 2014. 215. OA, ECCC Financial Outlook, October 31, 2014; OA, ECCC Financial Outlook, March 31, 2016. 216. OA, ECCC Financial Outlook as at 31 October 2017. 217. OA, Press Release, ECCC Budget for 2014–2015 Published, March 19, 2014. 218. Stuart White, “KRT trims budget by millions,” Phnom Penh Post, March 20, 2014. 219. Lauren Crothers, “Volunteers Sought to Help KRT Investigating Judge, Prosecutor,” Cambodia Daily, April 26, 2014. 220. OA, Press Release, Revised Budget for 2014–2015 Published, April 21, 2015. 221. OA, Press Release, Revised Budget for 2016–2017 Published, January 26, 2016. 222. OCIJ, Combined Decision on the Impact of the Budgetary Situation on Case 003, 004 and 004/02 and Related Submissions by the Defense for Yim Tith [Redacted], D349/6, August 11, 2017, ¶ 1 (hereinafter, “Combined Decision”). 223. Andrew Nachemson and Erin Handley, “Staying Khmer Rouge tribunal cases mulled,” Phnom Penh Post, May 8, 2017. 224. OSJI, “Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: Threat to Permanently Stay Cases 003, 004 and 004/2,” June  2017, 1; Andrew Nachemson, “Justice group decries proposal to end Khmer Rouge tribunal cases,” Phnom Penh Post, June 19, 2017. 225. Youk Chhang, “Cambodians must find their own justice as Khmer Rouge Tribunal breaks down,” Southeast Asia Globe, June 15, 2017. 226. Andrew Nachemson and Erin Handley, “Stay a ‘denial of due process,’ ” Phnom Penh Post, May 10, 2017. 227. “Combined Decision,” ¶ 5. 228. “Combined Decision,” ¶ 7a. 229. “Combined Decision,” ¶ 7a. 230. Confidential communication from a person with access to the thinking of UN Legal Counsel Patricia O’Brien, April 12, 2012. 231. Sok Khemara, “UN Investigating Judge Approved by Cambodia,” VOA, June 26, 2012. 232. OA, Deployment of New International Co-Investigating Judge, July 30, 2012. 233. OA, Press Release, Mr. Ang Udom and Mr. Michael Karnavas Assigned as Defense Counsel to Represent a Suspect in Case 003, December 14, 2012. 234. Sok Khemara, “Lawyers Named for Suspects in Controversial Tribunal Case,” VOA, May 25, 2013. 235. OA, Press Release, Mr. Bit Seanglim and Mr. So Mosseny Assigned as Defense Council to Represent Two Suspects in Case 004, December 16, 2013. 236. Lauren Crothers and Phorn Bopha, “Khmer Rouge War Crimes Suspect Sou Met Dead,” Cambodia Daily, June 27, 2013. 237. Julia Wallace, “Bosnian Lawyer Appointed for KRT Suspect Ta Tith,” Cambodia Daily, February 19, 2014.

417 9. JUSTICE DENIED

238. Stuart White, “New lawyer tapped for Case 004,” Phnom Penh Post, April 2, 2014. 239. Julia Wallace, “Judge Removes Case 003 Suspect’s Lawyers,” Cambodia Daily, January 27, 2014. 240. Author’s interview with Michael Karnavas, Phnom Penh, June 7, 2016. 241. Wallace, “Judge Removes.” 242. Author’s interview with Michael Karnavas. 243. Hong Kimsuon, Sam Sokhong and Lyma Nguyen, “An Opportunity to Remedy Past Wrongs against Victims at the ECCC (Case 003),” February 18, 2013. 244. Abby Seiff, “Breath of life for stalled cases,” Phnom Penh Post, April 22, 2013; OCIJ, Lawyers Recognition Decision Concerning All Civil Party Applications on Case File No.003, D58, February 26, 2013. 245. Seiff, “Breath of life”; OCIJ, Lawyers Recognition Decision Concerning All Civil Party Applications on Case File No.004, D126, April 1, 2013. 246. OCIJ, Lawyer’s Recognition Decision Regarding Kong Phallack and Mahdev Mohan on Case File 004, D129 (Redacted), July 1, 2013. 247. OCIJ, Decision on the (Redacted) Defense Requests to Access the Case File and Take Part in the Judicial Investigation, D121/4 (Redacted), July 31, 2013. 248. PTC, Considerations of the Pre-Trial Chamber on (Redacted) Appeal against the Decision Denying his Requests to Access the Case File and Take Part in the Judicial Investigation, D121/4/1/4 (Redacted), January 15, 2014. 249. Stuart White, “KR tribunal: Lawyers call for dropping of Case 004,” Phnom Penh Post, January 17, 2014. 250. Sok Khemara, “Additional Khmer Rouge Suspect to Appear at Tribunal Monday,” VOA, August 11, 2014; Sok Khemara, “No Show at Court for Potential Khmer Rouge Suspect,” VOA, August 12, 2014. 251. Holly Robinson and Khuon Narim, “Gov’t Ignored Arrest Warrant For Accused War Criminal,” Cambodia Daily, June 18, 2015. 252. Robinson and Narim, “Gov’t Ignored Arrest Warrant For Accused War Criminal.” 253. Kevin Ponniah, “Case 004 suspect Im Chaem ordered to court,” Cambodia Daily, January 17, 2015. 254. “Hun Sen says Khmer Rouge tribunal goes ‘too far,’ ” Kyodo, February 26, 2015. 255. Donald Lee, “PM Blasts Former Australian Foreign Minister,” Khmer Times, February 26, 2015. 256. “Cambodia’s Khmer Rouge Tribunal Charges 2 New Suspects,” AP, March 3, 2015; Stuart White and May Titthara, “Khmer Rouge duo charged,” Phnom Penh Post, March 3, 2015. 257. Khuon Narim and Holly Robertson, “Former Khmer Rouge Officials Meet New Charges With Defiance,” Cambodia Daily, March 5, 2015. 258. Narim and Robertson, “Former Khmer Rouge Officials Meet New Charges With Defiance.” 259. Khuon Narim, “Meas Muth Falls Ill, Treated in Phnom Penh, Thailand,” Cambodia Daily, March 9, 2015. 260. May Titthara, “Im Chaem isn’t home,” Phnom Penh Post, March 17, 2015. 261. May Titthara, “Group condemns gov’t influence on 003, 004,” Phnom Penh Post, March 9, 2015.

418 9. JUSTICE DENIED

262. Shaun Turton, “Tribunal’s treatment of cases 003, 004 draws int’l scorn,” Phnom Penh Post, March 24, 2015. 263. Donald Lee and Nov Sivuth, “Gov’t Will Not Arrest KR Suspects,” Khmer Times, March 24, 2015. 264. T. Mohan, “Police Vow Not to Arrest KR Suspects: Personal Views,” Khmer Times, March 26, 2015. 265. Khuon Narim and Holly Robertson, “UN Envoy, Gov’t Discuss Divisive KRT Cases,” Cambodia Daily, March 26, 2015. 266. Narim and Robertson, “UN Envoy, Gov’t Discuss Divisive KRT Cases.” 267. Robertson and Narim, “Gov’t Ignored Arrest Warrant for Accused War Criminal.” 268. Robinson and Narim, “Gov’t Ignored Arrest Warrant For Accused War Criminal.” 269. UN-Cambodia Agreement, Art. 25. 270. OA, Press Release, Statement of the International Co-Investigating Judge regarding Case 004, March 27, 2015; Holly Robertson, “KRT Charges Second Suspect in Case 004,” Cambodia Daily, March 28, 2015. 271. OA, Press Release, Statement by the International Co-Investigating Judge, July 7, 2015. 272. Stuart White, “Another KRT investigating judge resigns,” Phnom Penh Post, July 7, 2015. 273. OA, Press Release, Appointment of new International Co-Investigating Judge and Reserve, August 24, 2015. 274. Opinion of Judges Prak Kimsan, Ney Thol and Huot Vuthy, ¶ 8, in PTC, Considerations of the Pre-Trial Chamber on Meas Muth’s Urgent Request for a Stay of Execution of Arrest Warrant, C2/4, September 23, 2015. 275. OA, Press Release, Statement of International Co-Investigating Judge regarding Case 003, December 14, 2015. 276. OA, Press Release, Statement of International Co-Investigating Judge regarding Case 004, December 9, 2015. 277. OA, Press Release, Co-Investigating Judges order the severance of Im Chaem from Case 004, February 15, 2016. 278. Alessandro Sassoon, “Khmer Rouge tribunal severs Im Chaem from Case 004,” Phnom Penh Post, Feb. 16, 2016. 279. OCIJ, Notice of Conclusion of Judicial Investigation against Im Chaem, D285, December 18, 2015, ¶ 3. 280. OCIJ, Im Chaem’s observations on whether she should be considered a “senior leader” or among “those who were most responsible,” D251/4, September 21, 2015; OCIJ, Submission on whether Im Chaem should be a “senior leader” or among “those most responsible” for the crimes committed in Democratic Kampuchea, D251/5, September 21, 2015; OCIJ, National Co-Prosecutor’s observations relating to OCIJ’s exercise of discretion over the case of Im Chaem regarding D251, D251/6, September 21, 2015. 281. Sassoon, “Khmer Rouge tribunal severs.” 282. Stuart White and May Titthara, “Khmer Rouge duo charged,” Phnom Penh Post, March 3, 2015. 283. OCIJ, Decision to Charge Meas Muth In Absentia, D128, March 3, 2015; OCIJ, Annex: Notification of Charges against MEAS Muth, D128.1, March 3, 2015. 284. OCIJ, Statement of the International Co-Investigating Judge regarding Case 003, December  14, 2015; Alessandro Sassoon, “Genocide charges delivered to

419 9. JUSTICE DENIED

Muth,” Phnom Penh Post, December 15, 2015; George Wright and Saing Soenthrith, “Meas Muth Faces Charges Including Genocide,” Cambodia Daily, December 15, 2015. 285. OCIJ, Notice of Conclusion of Judicial Investigation against Im Chaem, D285, December 18, 2015. 286. George Wright, “Judicial Investigation of Im Chaem Concludes,” Cambodia Daily, December 19, 2015. 287. OA, Case file 004/01 forwarded for final submissions, July 27, 2016; Erin Handley, “Deadline in Im Chaem proceedings,” Phnom Penh Post, July 28, 2016. 288. George Wright, “Im Chaem’s Case Sent to Judges at Tribunal,” Cambodia Daily, December 7, 2016. 289. Erin Handley and Chhay Channyda, “Chaem cleared at KRT, to the regret of survivors,” Phnom Penh Post, February 23, 2017. 290. OCIJ, Closing Order (Disposition) [Redacted], D308, February 22, 2017; OCIJ, CoInvestigating Judges Dismiss Case against Im Chaem, February 22, 2017. 291. Erin Handley, “Tribunal’s edited decision on Im Chaem draws ire,” Phnom Penh Post, July 12, 2017. 292. OCIJ, Closing Order (Reasons) [Redacted], D308/3, July 10, 2017; Erin Handley, “Im Chaem defense lauds decision,” Phnom Penh Post, July 13, 2017. 293. Closing Order (Reasons) [Redacted], ¶ 319. 294. Closing Order (Reasons) [Redacted], ¶ 320–322. 295. “Judge says Cambodian genocide tribunal in jeopardy if court rules not adopted,” AP, May 23, 2007. 296. OCIJ, International Co-Prosecutor’s Notice of Appeal against Closing Order (Reasons), D308/3/1, July  20, 2017; Erin Handley, “Chaem ruling to be appealed,” Phnom Penh Post, July 24, 2017. 297. PTC, International Co-Prosecutor’s Appeal of the Closing Order (Reasons), D308/3/1/1, August 9, 2017. 298. PTC, Im Chaem’s Response to the International Co-Prosecutor’s Appeal of the Closing Order (Reasons), D308/3/1/11, September 22, 2017. 299. PTC, Civil Party Co-Lawyers’ Submission on ECCC Position within Cambodian Legal System, D308/3/1/9, September 8, 2017. 300. PTC, Scheduling Order for the Pre-Trial Chamber’s Hearing on Appeal against Closing Order, D308/3/1/19, November 14, 2017. 301. PTC, Appeals Hearing, D308/3/1/19/1.1, December 11, 2017. 302. OA, Completion Plan, Revision 15, December 31, 2017, ¶ 32. 303. PTC, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), D308/3/1/20, June 28, 2018, 27. 304. PTC, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), D308/3/1/20, June 28, 2018, ¶ 92. 305. PTC, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), D308/3/1/20, June 28, 2018, ¶ 339. 306. PTC, Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons), D308/3/1/20, June 28, 2018, ¶ 340. 307. Alessandro Sassoon, “New charges brought against Ta An at KRT,” Phnom Penh Post, March 15, 2016; George Wright, “Khmer Rouge Tribunal Charges Ta An with Genocide,” Cambodia Daily, March 15, 2016.

420 9. JUSTICE DENIED

308. OCIJ, Notice of Conclusion of Judicial Investigation against Ao An, D334, December 16, 2016. 309. OCIJ, Order for Severance of Ao An from Case 004, D334/1, December 16, 2016. 310. OCIJ, Second Notice of Conclusion of Judicial Investigation against Ao An [Redacted], D334/2, March 29, 2017. 311. OCP, Statement by the Office of the Co-Prosecutors on Case 004/2, August 31, 2017; George Wright, “Tribunal Prosecutors at Odds Over Ta An Genocide Case,” Cambodia Daily, September 1, 2017; Erin Handley, “Team at odds over Ao An case,” Phnom Penh Post, September 1, 2017. 312. Statement of Ao An’s Co-Lawyers on their Response to the Co-Prosecutors’ Final Submissions, October 25, 2017. 313. OCIJ, Co-Investigating Judges Issue Two Separate Closing Orders in Case Against Ao An Case No. 004/2/07-09-2009-ECCC/OCIJ, August 16, 2018. 314. OCIJ, Closing Order (Indictment), D360, August 16, 2018. 315. OCIJ, Closing Order (Indictment), D360, August 16, 2018, 409–415. 316. OA, Completion Plan, Revision 18, September 30, 2018, ¶ 23. 317. Cheang Sokha, “Khmer Rouge court concludes Case 004/2,” Khmer Times, June 21, 2019. 318. PTC, Report of the Case and Appeals, D360/16, June 19, 2019, 10. 319. OCIJ, Notice of Conclusion of Judicial Investigation against Meas Muth, D225, January 10, 2017; Erin Handley, “Tribunal closes probe of Muth,” Phnom Penh Post, January 11, 2017. 320. OCIJ, Second Notice of Conclusion of Judicial Investigation against Meas Muth [Redacted], D252, May 24, 2017, ¶ 16. 321. OCIJ, Forwarding Order Pursuant to Internal Rule 66(4), D256, July 25, 2017. 322. OCP, Statement by the International Co-Prosecutor on Case 003, November 30, 2017; OCP, Statement by the National Co-Prosecutor on Case 003, November 30, 2017. 323. Alessandro Sassoon, “Khmer Rouge prosecutors split on Muth case,” Phnom Penh Post, December 1, 2017. 324. Combined Decision, n. 71. 325. OCIJ, Closing Order, D267, November 28, 2018. 326. OCIJ, Co-Investigating Judges Issue Two Separate Closing Orders in the Case against Meas Muth Case No. 003/07-09-2009-ECCC/OCIJ, November 28, 2018. 327. Closing Order, D267, ¶ 579. 328. Closing Order, D267, ¶ 579; OCIJ, Statement by the National Co-Investigating Judge regarding Case 003 against Meas Muth, D266_Redacted_KH, November 28, 2018. 329. OCIJ, Co-Investigating Judges Issue Two Separate Closing Orders in the Case against Meas Muth Case No. 003/07-09-2009-ECCC/OCIJ, November 28, 2018. 330. OCIJ, Co-Investigating Judges Issue Two Separate Closing Orders in the Case against Meas Muth Case No. 003/07-09-2009-ECCC/OCIJ, November 28, 2018. 331. OA, Completion Plan, Revision 18, September 30, 2018, ¶ 23. 332. OCIJ, International Co-Prosecutor’s Request for Investigative Action, D338, January 12, 2017. 333. OCIJ, Decision on International Co-Prosecutor’s Request for Investigative Action, D338/1, May 1, 2017.

421 10. EXTRAORDINARY JUSTICE

334. PTC, International Co-Prosecutor’s Appeal of Decision on Request for Investigative Action, D338/1/1/3, July 14, 2017. 335. PTC, Decision on International Co-Prosecutor’s Appeal of Decision on Request for Investigative Action [Redacted], D338/1/1/1, August 11, 2017. 336. OCIJ, Notice of Conclusion of Judicial Investigation Against Yim Tith, D358, June 13, 2017. 337. OCIJ, Second Notice of Conclusion of Judicial Investigation Against Yim Tith [Redacted], D368, September 5, 2017. 338. OA, Completion Plan, Revision 15, December 31, 2017, ¶ 22. 339. OA, Completion Plan, Revision 18, September 30, 2018, ¶ 19. 340. OA, Completion Plan, Revision 18, September 30, 2018, ¶ 19 341. OA, Completion Plan, Revision 20, March 31, 2019, ¶ 38; OCIJ, Co-Investigating Judges Issue Two Separate Closing Orders in the Case Against Yim Tith, June 28, 2019. 342. Cheang Sokha, “International Co-Investigating Judge resigns from Khmer Rouge Tribunal,” Khmer Times, June 28, 2019. 343. Counting from when the international co-prosecutor determined that the Introductory Submissions were ready to file, rather than from the date that they were delivered to OCIJ; the intervening dispute between the co-prosecutors counts toward the delay.

10. EXTRAORDINARY JUSTICE 1. Transcript from Press Conference of Keo Chanda, Minister of Information, Press, and Culture, July 28, 1979, in Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary, ed. Howard J. DeNike, John Quigley, and Kenneth J. Robinson (Philadelphia: University of Pennsylvania Press, 2000), 48. 2. DeNike et al., Genocide in Cambodia, 507. 3. DeNike et al., Genocide in Cambodia, 509. 4. DeNike et al., Genocide in Cambodia, 511. 5. The author was the executive director of the Campaign to Oppose the Return of the Khmer Rouge, and later served as program manager and acting director for Yale’s Cambodian Genocide Program. 6. But see, for example, Sebastian Strangio, Hun Sen’s Cambodia (New Haven, CT: Yale University Press, 2014), 207–210. 7. Author’s interview with Sean Visoth, Phnom Penh, July 9, 2015. 8. Early on during the work of the Rules Committee, an international member of the committee pulled the author aside in the hallway during a break and observed, “We are not speaking the same language at all.” “That is to be expected,” I replied. “They speak Khmer and all of you speak English or French.” “That’s not what I mean,” the judge said. “We are speaking the language of law, and they are speaking the language of politics.” Ten years on, unfortunately, I cannot recall which judge made this comment to me. 9. At least two courts appear to have been inspired by Cambodia’s model. The Extraordinary African Chambers (EAC) in Senegal was established on February 8, 2013, and the Special Criminal Court in the Central African Republic was approved for startup in 2018.

422 10. EXTRAORDINARY JUSTICE

10. Nate Thayer Facebook post dated January 22, 2015. 11. Gerry Simpson, Law, War & Crime (Malden, MA: Polity Press, 2007), especially chapter 5. 12. Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, CT: Yale University Press, 2001), 113. 13. Renee Dopplick, “Bassiouni ‘Quite Doubtful’ International Criminal Court Will Succeed—the Failures, Challenges, and Future of International Criminal Law,” Inside Justice, March 31, 2010. 14. Dopplick, “Bassiouni ‘Quite Doubtful’ International Criminal Court Will Succeed.” 15. Memorandum from Craig Etcheson to Robert Petit re: Visit of Trudy Peterson, July 23, 2008. 16. Tessa Bialek, “Legacy at the Extraordinary Chambers in the Courts of Cambodia: Research Overview,” Documentation Center of Cambodia, December 1, 2011, 10. 17. Bialek, “Legacy at the Extraordinary Chambers,” 26–27. 18. Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Maximizing the legacy of hybrid courts, 2008, 4–5. 19. Alex Bates, “Transitional Justice in Cambodia: Analytical Report,” The Atlas Project, British Institute of International and Comparative Law, October 2010, 49. 20. Bialek, “Legacy at the Extraordinary Chambers,” 30, citing Bates, “Transitional Justice in Cambodia,” 50. 21. Bialek, “Legacy at the Extraordinary Chambers,” 8. 22. This observer may prefer to remain anonymous. 23. Ten Soksreinith, “David Chandler Talks Cambodian Optimism—and Its Opposite,” VOA, May 16, 2016. 24. Richard A. Wilson, Writing History in International Criminal Trials (New York: Cambridge University Press, 2011). 25. Craig Etcheson, “Let the Khmer Rouge Court Record Show: Cambodia Shouldn’t Censor the Khmer Rouge Court’s Files,” The New York Times, August 26, 2014. 26. A significant amount of this material came from the Documentation Center of Cambodia, the Tuol Sleng Museum of Genocide, or the National Archives, where it is available to researchers, but the majority of the material is from other sources. 27. Peter Ford, “Memo From Judge Revises S-21 Prisoner Total to Over 15,000,” Cambodia Daily, May 24, 2016; TC, Decision admitting new OCIJ Prisoner List, E393, April 5, 2016. 28. TC, Transcript of Trial Proceedings, E1/522.1, June 15, 2017, 34. 29. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 2003, Art. 11 (hereinafter, “UNCambodia Agreement”). 30. Erin Handley, “Khmer Rouge reparations statue quietly removed,” Phnom Penh Post, January 29, 2018. 31. See https://www.ictj.org /our-work /regions-and-countries/sierra-leone. 32. Author’s interview with Thun Saray, Phnom Penh, November 28, 2001. 33. Khy Sovuthy, “Adhoc President Wins Human Rights Award While in Exile,” Cambodia Daily, December 3, 2016.

423 10. EXTRAORDINARY JUSTICE

34. Sok Khemara, “Tribunal Must Consider Reparations: Victim,” VOA, August 27, 2010. 35. Andrea Hamilton, “UNTAC Hit by Rash of Car Thefts,” Phnom Penh Post, July 16–29, 1993. Mindful of this precedent, UNAKRT had insisted that the ECCC’s motor pool be provided by the Royal Government. See Supplemental Agreement between the United Nations and the Royal Government of Cambodia Ancillary to the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea regarding Utilities, Facilities and Services, March 14, 2006, Art. 7(1). 36. Nick Lenaghan, “The war’s over—let’s go shopping,” Phnom Penh Post, July 12–24, 1997. 37. UN-Cambodia Agreement. 38. OA, Public Affairs Outreach Figures 2009–2017 as of September 30, 2017. 39. Phuong Pham, Patrick Vinck, Mychelle Balthazard, and Sokhom Hean, After the First Trial: A Population-Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia, Human Rights Center, University of California, Berkeley, June 2011, 29. 40. Or rather, only international personnel have expressed such an interest publicly. Over the years, however, numerous national officers of the court have privately lamented to me their government’s efforts to stymie the progress of Cases 003 and 004, expressing their personal preference that those cases should proceed.

SELECT BIBLIOGRAPHY

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BOOKS Becker, Elizabeth. When the War Was Over: The Voices of Cambodia’s Revolution and Its People. New York: Simon & Schuster, 1986. Bekaert, Jacques. Cambodia Diary: Tales of a Divided Nation. Bangkok: White Lotus, 1997. ——. Cambodia Diary: A Long Road to Peace. Bangkok: White Lotus, 1998. Broadhurst, Roderic, Thierry Bouhours, and Brigette Bouhours. Violence and the Civilizing Process in Cambodia. Cambridge: Cambridge University Press, 2015. Brown, MacAlister, and Joseph J. Zasloff. Cambodia Confounds the Peacemakers, 1979– 1998. Ithaca, NY: Cornell University Press, 1998. Carr, Edward Hallett. The Twenty Years’ Crisis, 1919–1939: An Introduction to the Study of International Relations. New York: Harper and Row, 1964. Chandler, David P. A History of Cambodia, 2nd ed. Chiang Mai: Silkworm Books, 1993. Chandler, David P., Ben Kiernan, and Chanthou Boua, eds. and trans. Pol Pot Plans the Future: Confidential Leadership Documents from Democratic Kampuchea, 1976– 1977. New Haven, CT: Yale University Southeast Asia Studies, 1988. Ciorciari, John D., and Anne Heindel. Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia. Ann Arbor: University of Michigan Press, 2014. Coedès, G. The Indianized States of Southeast Asia. Ed. Walter F. Vella. Trans. Susan Brown Cowing. Honolulu: The University Press of Hawaii, 1968. Conquest, Robert. The Great Terror: A Reassessment. Oxford: Oxford University Press, 1990. Cruvellier, Thierry. The Master of Confessions: The Trial of a Khmer Rouge Torturer. New York: HarperCollins, 2014. DeNike, Howard J., John Quigley, and Kenneth J. Robinson, eds. Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary. Philadelphia: University of Pennsylvania Press, 2000. Douglas, Lawrence. The Memory of Judgment: Making Law and History in the Trials of the Holocaust. New Haven, CT: Yale University Press, 2001.

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Dunlop, Nic. The Lost Executioner: A Story of the Khmer Rouge. London: Bloomsbury, 2005. Etcheson, Craig. The Rise and Demise of Democratic Kampuchea. Boulder, CO: Westview Press, 1984. ——. After the Killing Fields: Lessons from the Cambodian Genocide. New York: Praeger, 2005. Fawthrop, Tom, and Helen Jarvis. Getting Away with Genocide? Elusive Justice and the Khmer Rouge Tribunal. London: Pluto Press, 2004. Gottesman, Evan. Cambodia After the Khmer Rouge: Inside the Politics of Nation Building. New Haven, CT: Yale University Press, 2003. Hall, D.G.E. A History of Southeast Asia, 4th ed. New York: St. Martin’s Press, 1981. Hannum, Hurst, and David Hawk. The Case Against the Standing Committee of the Communist Party of Kampuchea. New York: Cambodian Documentation Commission, 1986. Heder, Steve, and Brian Tittemore. Seven Candidates for Prosecution: Accountability for the Crimes of the Khmer Rouge. Phnom Penh: Documentation Center of Cambodia, 2004. Jansen, Marc, and Nikita Petrov. Stalin’s Loyal Executioner: People’s Commissar Nicolai Ezhov 1895–1940. Palo Alto, CA: Hoover Institution Press, 2002. Kiernan, Ben. The Pol Pot Regime: Race, Power, and Genocide in Cambodia Under the Khmer Rouge, 1975–79. New Haven, CT: Yale University Press, 1996. Kirchheimer, Otto. Political Justice: The Use of Legal Procedure for Political Ends. Princeton, NJ: Princeton University Press, 1961. Kozhevnikov, M. V. Istoriia sovetskogo suda, 1917–1956 gody. Moscow: Gosudarstvennoe isdatelastvo iuridicheskoi literatury, 1957. Lemonde, Marcel. Un juge face aux Khmers rouges. Paris: Éditions du Seuil, 2013. Lenin, V. I. Collected Works, Vol. IX, 2nd/3rd ed. Moscow: Partizdat TsK VKP, 1936. ——. S chego nachat?’ Moscow: Progress, 1981. ——. O zashchite sotsialisticheskogo otechestva. Moscow: Progress, 1981. ——. O kooperatsii. Moscow: Progress, 1983. ——. Ekonomika i politika v epokhu diktatury proletariata. Moscow: Progress, 1984. ——. Groziashchaia katastrofa i kak s nei borot’sia. Moscow: Progress, 1985. ——. Sotsializm i voina. Otnoshenie RSDRP k voine. Moscow: Progress, 1986. ——. Izbrannye proizvedeniia v 12 tomakh, tom 1. Moscow: Progress, 1987. Majumdar, R. C. Kambuja-Desa or An Ancient Hindu Colony in Cambodia. Philadelphia: Institute for the Study of Human Issues, 1980. Maguire, Peter. Law and War: An American Story. New York: Columbia University Press, 2000. Markovits, Inga. Justice in Luritz: Experiencing Socialist Law in East Germany. Princeton: Princeton University Press, 2010. Martin, Marie Alexandrine. Cambodia: A Shattered Society. Oakland: University of California Press, 1994. Meyer, Jeffrey A., and Mark G. Califano. Good Intentions Corrupted: The Oil-for-Food Program and the Threat to the U.N. New York: Public Affairs, 2010. Osborne, Milton. Sihanouk: Prince of Light, Prince of Darkness. Chiang Mai: Silkworm Books, 1994. Pham, Phuong, Patrick Vinck, Mychelle Balthazard, and Sokhom Hean. After the First Trial: A Population-Based Survey on Knowledge and Perception of Justice and the

429 SELECT BIBLIOGRAPHY

Extraordinary Chambers in the Courts of Cambodia. Berkeley: University of California Human Rights Center, 2011. Potter, Pitman B. From Leninist Discipline to Socialist Legalism: Peng Zhen on Law and Political Authority in the PRC. Stanford, CA: Stanford University Press, 2003. Raszelenberg, Peter, and Peter Schier. The Cambodia Conflict: Search for a Settlement, 1979–1991. Hamburg: Institute for Asian Affairs, 1995. Rochester, Stuart I., and Frederick T. Kiley. Honor Bound: American Prisoners of War in Southeast Asia, 1961–1973. Annapolis, MD: U.S. Naval Institute Press, 2007. Schapiro, Leonard. The Communist Party of the Soviet Union, 2nd ed. New York: Vintage, 1971. Scheffer, David. All the Missing Souls: A Personal History of the War Crimes Tribunals. Princeton, NJ: Princeton University Press, 2012. Sereny, Gitta. Albert Speer: His Battle with Truth. New York: Knopf, 1995. Shakespeare, William. Henri VI. In The Plays and Sonnets of William Shakespeare, Vol. I, ed. William George Clarke and William Aldis Wright, 1–104. Chicago: Encyclopedia Britannica, 1952. Shelley, Louise. Policing Soviet Society: The Evolution of State Control. London: Routledge, 1996. Shklar, Judith N. Legalism: Laws, Morals, and Political Trials. Cambridge, MA: Harvard University Press, 1964. Short, Philip. Pol Pot: The History of a Nightmare. London: John Murray, 2004; also published as Pol Pot: Anatomy of a Nightmare. New York: Henry Holt, 2004. Simpson, Gerry. Law, War & Crime. Malden, MA: Polity Press, 2007. Slocomb, Margret. The People’s Republic of Kampuchea 1979–1989: The Revolution after Pol Pot. Chiang Mai: Silkworm Books, 2003. Smith, Bradley F. Reaching Judgment at Nuremberg: The Untold Story of How the Nazi War Criminals Were Judged. New York: Basic Books, 1977. Strangio, Sebastian. Hun Sen’s Cambodia. New Haven, CT: Yale University Press, 2014. Suny, Ronald Grigor. The Soviet Experiment: Russia, the USSR, and the Successor States. Oxford: Oxford University Press, 1998. Trang, Quang Co. Trang Quang Co: A Memoir. http://www.diendan.org/tai-lieu-hoi-ky -tran-quang-co. Trans. Rich Arant. Turner, Robert F. Vietnamese Communism: Its Origins and Development. Stanford, CA: Hoover Institution Press, 1975. Vaksberg, Arkady. Stalin’s Prosecutor: The Life of Andrei Vyshinsky. New York: Grove Weidenfeld, 1991. Vergès, Jacques. De la stratégie judiciare. Paris: Les Éditions de Minuit, 1968. Vickery, Michael. Kampuchea: Politics, Economics and Society. Boulder, CO: Lynne Reinner, 1986. ——. Society, Economy and Politics in Pre-Angkor Cambodia: The 7th–8th  Century. Tokyo: The Centre for East Asian Cultural Studies for UNESCO, 1998. Willard, Marcel. La defense accuse. Paris: Éditions Sociales, 1938. Wilson, Richard A. Writing History in International Criminal Trials. New York: Cambridge University Press, 2011. Zou, Keyuan. China’s Legal Reform: Towards the Rule of Law. Leiden: Martinus Nijhoff Publishers, 2006.

430 SELECT BIBLIOGRAPHY

ECCC DOCUMENTS This section is arranged in chronological order, rather than alphabetically as is the remainder of the bibliography, for ease of use by the reader.

General Communist Party of Kampuchea. Revolutionary Flag. April 1976. D243/2.1.4. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, June 6, 2003. UNAKRT. Budget estimate for year 1 through year 3, Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. December 31, 2004. ——. Preliminary Indicative Post Numbers, for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. January 13, 2005. Letters of February 23 and March 4, 2009 from Michiel Pestman, Victor Koppe, and Andrew Ianuzzi to Ban Ki-moon. Nuon Chea Defense Team. Press Release. June 21, 2012. Hong, Kimsuon, Sam Sokhong, and Lyma Nguyen. An Opportunity to Remedy Past Wrongs against Victims at the ECCC (Case 003). February 18, 2013. Bar Association of the Kingdom of Cambodia. Decision on Placement of Victor Koppe, International Co-Counsel for Nuon Chea in Case 002/02, outside of the BAKC List. E378/8/10. August 16, 2018.

OFFICE OF ADMINISTRATION Visoth, Sean, and Michelle Lee. Joint Statement on the Establishment of the Office of Administration of the Extraordinary Chambers in the Courts of Cambodia. February 9, 2006. Letter from Hok Lundy to Sean Visoth, List of Police Officers for Training Participation. September 19, 2006. Press Announcement. November 16, 2006. Joint Statement by the National and International Judicial Officers of the ECCC, Phnom Penh. November 25, 2006. Press Release. February 26, 2007. Press Release Issued at the Request of the National Judges of the ECCC. April 5, 2007. ECCC Draft Internal Rules. May 24, 2007. Internal Rules, Ver. 1. June 12, 2007. Joint Statement by Judicial Officers, ECCC Plenary Session Unanimously Adopts Internal Rules. June 13, 2007. ECCC Internal Rules Published. June 20, 2007. Letter from Michelle Lee to Kong Sam Ol (unofficial translation). September 6, 2007. National Judges Press Release. January 9, 2009. Press Release. April 9, 2009.

431 SELECT BIBLIOGRAPHY

Internal Rules, Ver. 5. February 9, 2010. Press Release, Dr. Siegfried Blunk Appointed as New International Co-Investigating Judge. December 1, 2010. Press Release, Revised ECCC Budget for 2010–2011. February 7, 2011. Statement from the Office of Co-Investigating Judges. April 29, 2011. Statement from the Office of Co-Investigating Judges. May 18, 2011. Public Statement by Co-Investigating Judges. June 12, 2011. Note to Media, ECCC Expenditures. June 20, 2011. Statement by the International Co-Investigating Judge. October 10, 2011. Statement of the Co-Investigating Judges. October 26, 2011. Statement by the International Co-Prosecutor Regarding the Co-Investigating Judges’ Retraction Order in Case 003. October 27, 2011. Letter from the UNAKRT Coordinator to Co-Lawyers for Ieng Sary. November 7, 2011. Press Release by the International Reserve Co-Investigating Judge. December 6, 2011. Press Statement of the National Co-Investigating Judge. December 6, 2011. Press Release, ECCC Budget for 2012–2013 Published. March 9, 2012. Press Release of the International Reserve Co-Investigating Judge. March 19, 2012. Press Statement by the National Co-Investigating Judge. March 26, 2012. Press Release of the Reserve International Co-Investigating Judge. May 4, 2012. Public Statement by the Co-Prosecutors. June 5, 2012. Deployment of New International Co-Investigating Judge. July 30, 2012. Press Release, Trial Chamber Reduces Number of Weekly Hearing Days in Case 002/01. October 23, 2012. Press Release, Mr. Ang Udom and Mr. Michael Karnavas Assigned as Defense Counsel to Represent a Suspect in Case 003. December 14, 2012. Statement by Acting Director of the Office of Administration related to lack of cash flow to pay the ECCC’s national side’s staff salary for the month of December 2012 and budget situation for 2013. December 21, 2012. ECCC Revised Budget Requirements—2012–2013. January 29, 2013. Statement of His Excellency Mr. Kranh Tony. September 5, 2013. ECCC Financial Outlook. September 30, 2013. Statement by H.E. Tony Kranh, Acting Director of the Office of Administration. October 28, 2013. Press Release, Mr. Bit Seanglim and Mr. So Mosseny Assigned as Defense Council to Represent Two Suspects in Case 004. December 16, 2013. Press Release, ECCC Budget for 2014–2015 Published. March 19, 2014. ECCC Financial Outlook. October 31, 2014. Press Release, Statement of the International Co-Investigating Judge regarding Case 004. March 27, 2015. Press Release, Revised Budget for 2014–2015 Published. April 21, 2015. Press Release, Statement by the International Co-Investigating Judge. July 7, 2015. Press Release, Appointment of new International Co-Investigating Judge and Reserve. August 24, 2015. Press Release, Statement of International Co-Investigating Judge regarding Case 004. December 9, 2015. Press Release, Statement of International Co-Investigating Judge regarding Case 003. December 14, 2015.

432 SELECT BIBLIOGRAPHY

Press Release, Revised Budget for 2016–2017 Published. January 26, 2016. Press Release, Co-Investigating Judges order the severance of Im Chaem from Case 004. February 15, 2016. ECCC Financial Outlook. March 31, 2016. Case file 004/01 forwarded for final submissions. July 27, 2016. Public Affairs Outreach Figures 2009–2017 as of 30 September 2017. ECCC Financial Outlook as at 31 October 2017. Completion Plan, Revision 15. December 31, 2017. Completion Plan, Revision 18. September 30, 2018. Press Release: NUON Chea and KHIEU Samphan Sentenced to Life Imprisonment in Case 002/02. November 16, 2018. Completion Plan, Revision 20, March 31, 2019.

Office of Co-Investigating Judges Order of Provisional Detention. C3. July 31, 2007. Separation Order. D18. September 19, 2007. Provisional Detention Order. C22. November 14, 2007. Report on the Execution of Rogatory Letter. D49/13. February 19, 2008. Duch’s Notes to the request by CIJ on 24 Jan 2008. D42/I. March 18, 2008. Report of Reconstruction. D86/15. April 11, 2008. Report of Reconstruction. D86/16. April 11, 2008. Report on the Execution of Rogatory Letter. D77/9. April 25, 2008. Notice of Conclusion of Investigation. D89. May 15, 2008. Closing Order Indicting Kaing Guek Eav alias Duch. D99. August 8, 2008. Closing Order indicting Kaing Guek Eav alias Duch, Public Redacted Version. D99. August 8, 2008. Tenth Request for Investigative Action. D136. February 24, 2009. Eleventh Request for Investigative Action. D158. March 27, 2009. Tabeau, Ewa, and They Kheam. Khmer Rouge Victims in Cambodia, April 1975–January 1979: A Critical Assessment of Major Estimates. D140/1/1. September 30, 2009. Letter of Nuon Chea’s lawyers on lack of confidence in the Judicial Investigation. D221. October 15, 2009. CIJ’s Response to Letter of Nuon Chea’s lawyers on lack of confidence in the Judicial Investigation. D221/1. October 27, 2009. Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith. D263/1. October 31, 2009. Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith. D264/1. October 31, 2009. Request for Investigation. D254. November 30, 2009. Addendum to First “Request for Investigation.” D254/2. December 7, 2009. Ieng Sary’s Eleventh “Request for Investigative Action.” D284. December 17, 2009. Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses. D314. January 13, 2010. Order in Response to the Appeal Chamber’s Decision on Nuon Chea and Ieng Sary’s Requests to Summon Witnesses. D314/3. June 11, 2010.

433 SELECT BIBLIOGRAPHY

Second Request for Investigation. D384. July 7, 2010. Second Request for Investigation. D384.1. July 7, 2010. Closing Order. D427. September 15, 2010. Letter from International Legal Unit, OCIJ, to Ban Ki-moon, Secretary-General of the United Nations, regarding Close of the Investigation into Case File 003. April 29, 2011. Steve Heder letter to Judge Siegfried Blunk. May 5, 2011. Order on International Co-Prosecutor’s Public Statement Regarding Case File 003. D14. May 18, 2011. Letter from UN Legal Counsel Patricia O’Brien to Ignacio Tredici, International Team Leader, Legal Unit, OCIJ. June 22, 2011. Application for Disqualification of Judge Prak Kimsan, President of the Pre-Trial Chamber, pursuant to Rule 34(2) of the ECCC Internal Rules. February 8, 2012. Decision to Open an Investigation for Interference with the Administration of Justice under Internal Rule 35 of the ECCC. D29. February 10, 2012. Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004. D38. March 21, 2012. Lawyers Recognition Decision Concerning All Civil Party Applications on Case File No.003. D58. February 26, 2013. Lawyers Recognition Decision Concerning All Civil Party Applications on Case File No.004. D126. April 1, 2013. Lawyer’s Recognition Decision Regarding Kong Phallack and Mahdev Mohan on Case File 004. D129 (Redacted). July 1, 2013. Decision on the (Redacted) Defense Requests to Access the Case File and Take Part in the Judicial Investigation. D121/4 (Redacted). July 31, 2013. Decision to Charge Meas Muth In Absentia. D128. March 3, 2015. Annex: Notification of Charges against MEAS Muth. D128.1. March 3, 2015. Im Chaem’s observations on whether she should be considered a “senior leader” or among “those who were most responsible.” D251/4. September 21, 2015. Submission on whether Im Chaem should be a “senior leader” or among “those most responsible” for the crimes committed in Democratic Kampuchea. D251/5. September 21, 2015. National Co-Prosecutor’s observations relating to OCIJ’s exercise of discretion over the case of Im Chaem regarding D251. D251/6. September 21, 2015. Statement of the International Co-Investigating Judge regarding Case 003. December 14, 2015. Notice of Conclusion of Judicial Investigation against Im Chaem. D285. December 18, 2015. Notice of Conclusion of Judicial Investigation against Ao An. D334. December 16, 2016. Order for Severance of Ao An from Case 004. D334/1. December 16, 2016. Notice of Conclusion of Judicial Investigation against Meas Muth. D225. January 10, 2017. International Co-Prosecutor’s Request for Investigative Action. D338. January 12, 2017. Closing Order (Disposition) [Redacted]. D308. February 22, 2017. Co-Investigating Judges Dismiss Case against Im Chaem. February 22, 2017. Second Notice of Conclusion of Judicial Investigation against Ao An [Redacted]. D334/2. March 29, 2017.

434 SELECT BIBLIOGRAPHY

Decision on International Co-Prosecutor’s Request for Investigative Action. D338/1. May 1, 2017. Decision on Ao An’s Application to Annul the Entire Investigation. D350/1. May 8, 2017. Forwarding Order Pursuant to Internal Rule 66(4). D351. May 19, 2017. Second Notice of Conclusion of Judicial Investigation against Meas Muth [Redacted]. D252. May 24, 2017. Notice of Conclusion of Judicial Investigation Against Yim Tith. D358. June 13, 2017. Closing Order (Reasons) [Redacted]. D308/3. July 10, 2017. International Co-Prosecutor’s Notice of Appeal against Closing Order (Reasons). D308/3/1. July 20, 2017. Forwarding Order Pursuant to Internal Rule 66(4). D256. July 25, 2017. Combined Decision on the Impact of the Budgetary Situation on Case 003, 004 and 004/02 and Related Submissions by the Defense for Yim Tith [Redacted]. D349/6. August 11, 2017. Second Notice of Conclusion of Judicial Investigation Against Yim Tith [Redacted]. D368. September 5, 2017. Statement of Ao An’s Co-Lawyers on their Response to the Co-Prosecutors’ Final Submissions. October 25, 2017. Closing Order (Indictment). D360. August 16, 2018. Co-Investigating Judges Issue Two Separate Closing Orders in Case Against Ao An Case No. 004/2/07-09-2009-ECCC/OCIJ. August 16, 2018. Closing Order. D267. November 28, 2018. Co-Investigating Judges Issue Two Separate Closing Orders in the Case against Meas Muth Case No. 003/07-09-2009-ECCC/OCIJ. November 28, 2018. Statement by the National Co-Investigating Judge regarding Case 003 against Meas Muth. D266_Redacted_KH. November 28, 2018. Co-Investigating Judges Issue Two Separate Closing Orders in the Case Against Yim Tith. June 28, 2019.

Office of the Co-Prosecutors Summary of Target Suspects. October 16, 2006. Summary of Targets Addendum. October 17, 2006. Memorandum from Craig Etcheson to Robert Petit re: Visit of Trudy Peterson, July 23, 2008. Statement of the Acting International Co-Prosecutor, Submission of Two New Introductory Submissions. September 8, 2009. Co-Prosecutors’ Rule 66 Final Submission [Public Redacted Version]. D390. August 16, 2010. Statement by the International Co-Prosecutor regarding Case File 003. May 9, 2011. Co-Prosecutors Request for Stay of Release of Accused IENG Thirith. E138/1/2. November 18, 2011. Co-Prosecutors’ Supplementary Submissions on Appeal Concerning the Release of Accused IENG Thirith. E138/1/4. November 22, 2011. Statement by the Office of the Co-Prosecutors on Case 004/2. August 31, 2017. Statement by the International Co-Prosecutor on Case 003. November 30, 2017. Statement by the National Co-Prosecutor on Case 003. November 30, 2017.

435 SELECT BIBLIOGRAPHY

Pre-Trial Chamber Request for Resumés of PTC Judges. C11/16. January 9, 2008. Order on Time Limit for Submissions—Application for Disqualification of Judge Ney Thol. C11/22. January 30, 2008. Public Decision on the Co-Lawyers Urgent Application for Disqualification of Judge Ney Thol Pending the Appeal against the Provisional Detention Order in the Case of Nuon Chea. C11/29. February 4, 2008. Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement Between the Co-Prosecutors pursuant to Internal Rule 71, Opinion of Judges Lahuis and Downing. (No document number). August 18, 2008. Annex I: Public Redacted Version, Considerations of the Pre-Trial Chamber regarding the Disagreement Between the Co-Prosecutors pursuant to Internal Rule 71, Opinion of Judges: Prak Kimsan, Ney Thol and Huot Vuthy. (No document number). August 18, 2008. Co-Prosecutors’ Appeal of the Closing Order against Kaing Guek Eav “Duch” dated 8 August 2008. D99/3/3. September 5, 2008. International Co-Prosecutor’s Written Statement of Facts and Reasons for Disagreement pursuant to Rule 71(2). Doc. No. 1. December 3, 2008. Decision on Appeal against Closing Order indicting Kaing Guek Eav alias “Duch.” D99/3/42. December 5, 2008. Appeal Hearing Transcript. C26/5. April 3, 2009. Nuon Chea Appeal against Order on Eleventh Investigative Request. D158/5/1/1. May 4, 2009. Warning to International Co-Lawyer. C26/5/22. May 19, 2009. Decision on Appeal against the Co-Investigating Judges’ Order on the Accused Person’s Eleventh Request for Investigative Action. D158/5/1/15. August 18, 2009. Ieng Sary’s Application to Disqualify Co-Investigating Judge Marcel Lemonde and Request for a Public Hearing. Doc. No. 1. October 9, 2009. Application to Disqualify Co-Investigating Judge Marcel Lemonde. Doc. No. 1. October 13, 2009. Request for Appropriate Measures to be Taken Concerning Certain Statements by Prime Minister Hun Sen which Challenge the Independence of Pre-Trial Chamber Judges Katinka Lahuis and Rowan Downing. Doc. No. 1. October 20, 2009. Application for Disqualification of Judge Marcel Lemonde. Doc. No. 1. October 29, 2009. Decision on Ieng Sary’s Request for Appropriate Measures to be Taken Concerning Certain Statements by Prime Minister Hun Sen which Challenge the Independence of Pre-Trial Chamber Judges Katinka Lahuis and Rowan Downing. Doc. No. 5. November 30, 2009. Decision on Ieng Sary’s Application to Disqualify Co-Investigating Judge Marcel Lemonde. Doc. No. 7. December 9, 2009. Decision on Khieu Samphan’s Application to Disqualify Co-Investigating Judge Marcel Lemonde. Doc. No. 7. December 14, 2009. Defence Appeal against “Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith” (D263/1) of 31 December 2009. D263/2/1. February 2, 2010.

436 SELECT BIBLIOGRAPHY

Defence Appeal against “Order Rejecting the Request for Annulment and the Request for Stay of Proceedings on the Basis of Abuse of Process Filed by Ieng Thirith” (D264/1) of 31 December 2009. D264/2/1. February 2, 2010. Ieng Sary’s Appeal Against the OCIJ’s Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses Referred to in his Letter dated 16 December 2009 and in Paragraph 21(D) of his 11th Investigative Request. D314/1/4. March 15, 2010. Appeal Against OCIJ Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses. D314/2/4. March 16, 2010. (Redacted) Decision on Application for Disqualification of Judge Marcel Lemonde. Doc. No. 4. March 23, 2010. Decision on Nuon Chea and Ieng Sary’s Appeal Against OCIJ on Requests to Summon Witnesses. D314/1/8. June 8, 2010. Application for the Disqualification of Judge You Bunleng. Doc. No. 1. June 17, 2010. Ieng Sary’s Submissions to the Co-Investigating Judges’ Order Reconsidering the PreTrial Chamber’s Decision on Nuon Chea and Ieng Sary’s Appeal Against the OCIJ Order on Requests to Summon Witnesses. D314/1/10. June 21, 2010. Defence for Ieng Thirith Adoption of Defence for Nuon Chea’s “Application for Disqualification of Judge You Bunleng” of 17 June 2010. Doc. No. 2. June 22, 2010. Further Written Submissions in the Appeal Against the OCIJ Order on Nuon Chea and Ieng Sary’s Request to Summon Witnesses. D314/2/9. June 22, 2010. Decision on Ieng Thirith’s Appeal against the Co-Investigating Judges’ Order Rejecting the Request to Seise the Pre-Trial Chamber with a View to Annulment of All Investigations. D263/2/6. June 25, 2010. Directive on Classification of Pre-Trial Chamber Documents. Doc. No. 4. September 9, 2010. (Redacted) Second Decision on Nuon Chea and Ieng Sary’s Appeal Against OCIJ Order on Requests to Summon Witnesses. D314/2/10. September 9, 2010. (Redacted) Decision on Application for Disqualification of Judge You Bunleng. Doc. No. 8. September 10, 2010. Decision on Appeal Against Provisional Detention Order of Ieng Sary. C22/I/73. October 17, 2008. Decision on Appeal Against Provisional Detention Order of Ieng Sary. C22/I/74. October 17, 2008. Ieng Sary’s Appeal Against the Closing Order. D427/1/6. October 25, 2010. Decision on Ieng Sary’s Appeal Against the Closing Order. D427/1/30. April 11, 2011. International Co-Prosecutor’s Appeal against the “Order on the International CoProsecutor’s Public Statement regarding Case File 003.” D14/1/1. May 25, 2011. Considerations of the Pre-Trial Chamber regarding the Appeal against Order on the Admissibility of Civil Party Applicant Robert Hamill. D11/2/4/4. October 24, 2011. Considerations of the Pre-Trial Chamber Regarding the International Co-Prosecutor’s Appeal Against the Co-Investigating Judges’ Order on International Co-Prosecutor’s Public Statement Regarding Case 003 [Redacted]. D14/1/3. October 24, 2011. Considerations of the Pre-Trial Chamber regarding the International Co-Prosecutor’s Appeal against the Decision on Re-Filing of Three Investigative Requests (Public Redacted Version). D26/1/1. November 15, 2011. Considerations of the Pre-Trial Chamber regarding the International Co-Prosecutor’s Appeal against the Decision on Re-Filing of Three Investigative Requests, Opinion of Judges Lahuis and Downing (Public Redacted Version). D26/1/3. November 15, 2011.

437 SELECT BIBLIOGRAPHY

Opinion of Pre-Trial Chamber Judges Downing and Chung on the Disagreement between the Co-Investigating Judges pursuant to Rule 72. Attachment 2(a). February 10, 2012. Considerations of the Pre-Trial Chamber on (Redacted) Appeal against the Decision Denying his Requests to Access the Case File and Take Part in the Judicial Investigation. D121/4/1/4 (Redacted). January 15, 2014. Considerations of the Pre-Trial Chamber on Meas Muth’s Urgent Request for a Stay of Execution of Arrest Warrant. C2/4. September 23, 2015. Appeal Against the Decision on Ao An’s Application to Annul the Entire Investigation. D350/1/1/2. June 8, 2017. Ao An’s Appeal Against Internal Rule 66(4) Forwarding Order. D351/1/2/2. June 16, 2017. International Co-Prosecutor’s Appeal of Decision on Request for Investigative Action. D338/1/1/3. July 14, 2017. International Co-Prosecutor’s Appeal of the Closing Order (Reasons). D308/3/1/1. August 9, 2017. Decision on International Co-Prosecutor’s Appeal of Decision on Request for Investigative Action [Redacted]. D338/1/1/1. August 11, 2017. Decision on Appeal Against the Decision on Ao An’s Application to Annul the Entire Investigation [Redacted]. D350/1/1/4. September 5, 2017. Decision on Ao An’s Appeal Against Internal Rule 66(4) Forwarding Order [Redacted]. D351/2/3. September 6, 2017. Civil Party Co-Lawyers’ Submission on ECCC Position within Cambodian Legal System. D308/3/1/9. September 8, 2017. Im Chaem’s Response to the International Co-Prosecutor’s Appeal of the Closing Order (Reasons). D308/3/1/11. September 22, 2017. Scheduling Order for the Pre-Trial Chamber’s Hearing on Appeal against Closing Order. D308/3/1/19. November 14, 2017. Appeals Hearing. D308/3/1/19/1. December 11, 2017. Considerations on the International Co-Prosecutor’s Appeal of Closing Order (Reasons). D308/3/1/20. June 28, 2018. Report of the Case and Appeals, D360/16, June 19, 2019, 10.

Rules Committee Minutes of Review Committee Meeting. December 15 and 18, 2006. Minutes of 1st Session of the Review Committee. January 16–26, 2007. Statement from the Review Committee of the Extraordinary Chambers in the Courts of Cambodia. March 16, 2007.

Supreme Court Chamber Memorandum entitled Submission concerning 2012/13 Budget. June 9, 2011. Ieng Sary’s Appeal Against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon). E51/15/1/1. December 5, 2011. Decision on Immediate Appeal against the Trial Chamber’s Order to Release the Accused IENG Thirith. E138/1/7. December 13, 2011.

438 SELECT BIBLIOGRAPHY

Ieng Sary’s appeal against the Trial Chamber’s decision on motions for disqualification of Judge Silvia Cartwright. E137/5/1/1. January 5, 2012. Appeal Judgement, and Partially Dissenting Joint Opinion of Judges Agnieszka Klonowiecka-Milart and Chandra Nihal Jayasinghe. F28. February 3, 2012. Email from Supreme Court Judge Motoo Noguchi to Ohyoung Kwon, Chief, UNAKRT Budget and Finance Section. February 7, 2012. Decision on Ieng Sary’s Appeal Against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon). E51/15/1/2. March 20, 2012. Dissenting Opinion of Judges Klonowiecka-Milart and Jayasinghe. E51/15/1/2.1. March 20, 2012. Decision on Ieng Sary’s appeal against the Trial Chamber’s decision on motions for the disqualification of Judge Silvia Cartwright. E137/5/1/3. April 17, 2012. Decision on the Co-Prosecutors’ Immediate Appeal of the Trial Chambers Decision concerning the Scope of Case 002/01. E163/5/1/13. February 8, 2013. Decision on Immediate Appeals against Trial Chamber’s Second Decision on Severance of Case 002. E284/4/8. November 2, 2013. Co-Prosecutors’ Notice of Appeal of a Decision in Case 002/01. E313/3/1. September 29, 2014. Notice of Appeal Against the Judgment in Case 002/01. E313/1/1. September 29, 2014. Co-Prosecutors’ Appeal Against the Judgment of the Trial Chamber in Case 002/01. F11. November 28, 2014. Mr. Khieu Samphan’s Defence Appeal Brief Against the Judgement in Case 002/01. F17. December 29, 2014. Nuon Chea’s Appeal Against the Judgement in Case 002/01 (Redacted). F16. December 29, 2014. Transcript of Appeal Proceedings. F1/1.1. July 2, 2015. Transcript of Appeal Proceedings. F1/2.1. July 3, 2015. Transcript of Appeal Proceedings. F1/3.1. July 6, 2015. Transcript of Appeal Proceedings. F1/4.1. November 17, 2015. Transcript of Appeal Proceedings. F1/5.1. February 16, 2016. Transcript of Appeal Proceedings. F1/6.1. February 17, 2016. Transcript of Appeal Proceedings. F1/7.1. February 18, 2016. Appeal Judgement. F36. November 23, 2016.

Trial Chamber Transcript of Proceedings—Kaing Guek Eav “Duch” Trial. E1/6.1. March 31, 2009. Transcript of Proceedings—“Duch” Trial. E1/7.1. April 1, 2009. Transcript of Trial Proceedings—Kaing Guek Eav “Duch” Trial. E1/70.1. August  27, 2009. Transcript of Trial Proceedings—Kaing Guek Eav “Duch.” E1/80.1. November 25, 2009. Transcript of Trial Proceedings—Kaing Guek Eav “Duch.” E1/81.1. November  26, 2009. Transcript of Trial Proceedings—Kaing Guek Eav “Duch.” E1/82.1. November 27, 2009. Judgment. E188. July 26, 2010.

439 SELECT BIBLIOGRAPHY

Summary of Ieng Sary’s Rule 89 Preliminary Objections & Notice of Intent of Noncompliance with Future Informal Memoranda Issued in Lieu of Reasoned Decisions Subject to Appellate Review. E51/4. February 25, 2011. Transcript of Initial Hearing, Nuon Chea, Ieng Sary, Ieng Thirith, Khieu Samphan. E1/4.1. June 27, 2011. Severance Order pursuant to Internal Rule 89ter. E124. September 12, 2011. Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne Bis In Idem and Amnesty and Pardon). E51/15. November 3, 2011. Request for information related to ex-parte meetings between Judge Cartwright, Andrew Cayley and/or Knut Rosandhaug. E137. November 4, 2011. Urgent Application for Disqualification of Judge Cartwright. E137/2. November 21, 2011. Transcript of Trial Proceedings. E1/14.1. November 22, 2011. Response to the Opening Statement by the Prosecutor. E146.1. November 23, 2011. Transcript of Trial Proceedings. E1/15.1. November 23, 2011. Ieng Sary’s Request for Investigation Concerning Ex Parte Communications Between the International Co-Prosecutor, Judge Cartwright and Others. E137/3. November 24, 2011. Decision on Motions for Disqualification of Judge Silvia Cartwright. E137/5. December 2, 2011. Transcript of Trial Proceedings. E1/21.1. December 13, 2011. Transcript of Trial Proceedings. E1/33.1. January 25, 2012. Transcript of Trial Proceedings. E1/34.1. January 26, 2012. Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Indication of Priority Projects for Implementation as Reparation. E218/7. December 3, 2012. Submissions by Mr.  Khieu Samphan’s Defense Regarding the Questioning of the Accused. E288/4. July 5, 2013. Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Trial Chamber’s Response to the Lead Co-Lawyers Initial Specification of Civil Party Priority Projects as Reparations pursuant to Rule 80bis(4). E218/7/2. August 1, 2013. Civil Party Lead Co-Lawyers’ Response to the Trial Chamber’s Memorandum E218/7/2 Concerning Reparations Projects for Civil Parties in Case 002/01, with Confidential Annexes. E218/7/3. August 23, 2013. Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Trial Chamber’s Subsequent and Final Order on the Updated Specification of Civil Party Priority Projects as Reparations pursuant to Rule 80bis(4). E218/7/4. September 6, 2013. Transcript of Trial Proceedings. E1/232.1. October 22, 2013. Transcript of Trial Proceedings. E1/237.1. October 31, 2013. Transcript of Proceedings. E1/238.1. December 11, 2013. Transcript of Proceedings. E1/238.2. December 12, 2013. Memorandum from Trial Chamber President Nil Nonn to Civil Party Lead Co-Lawyers entitled Request for Clarification on Reparations Projects. E218/7/7. December 19, 2013. President’s Memorandum on the Proposal to Appoint a Second Panel of the Trial Chamber to Try the Remaining Charges in Case 002. E301/4. December 20, 2013.

440 SELECT BIBLIOGRAPHY

Deuxième complément d’informations à la demande définitive de réparations des coavocats principaux pour les parties civiles en application de la règle 80bis du Règlement intérieur et annexes confidentielles. E218/7/8. March 31, 2014. Transcript of Proceedings. E1/239.1. February 11, 2014. Decision on Additional Severance of Case 002 and Scope of Case 002/02. E301/9/1. April 4, 2014. Case 002/01 Judgement. E313. August 7, 2014. Transcript of Trial Proceedings. E1/241.1. August 7, 2014. Email of Notice and Requests for Prospective Motion for Disqualification. E314.1. August 11, 2014. Mr. Khieu Samphan’s Request for Reconsideration of the Need to Await Final Judgment in Case 002/01 before Commencing Case 002/02 and the Appointment of a New Panel of Trial Judges. E314/1. August 24, 2014. Renewed Application for Disqualification of the Current Judges of the Trial Chamber Who Are to Hear Case 002/02. E314/8. October 10, 2014. Transcript of Proceedings. E1/242.1. October 17, 2014. Transcript of Proceedings. E1/243.1. October 21, 2014. Memorandum from Trial Chamber President Nil Nonn to All Parties entitled Warning to counsel for Nuon Chea and Khieu Samphan. E320. October 24, 2014. Transcript of Proceedings. E1/244.1. October 28, 2014. Memorandum from Trial Chamber President Nil Nonn to All Parties entitled Ruling following TMM of 28 October 2014. E320/1. October 31, 2014. Decision on Applications for Disqualification of Trial Chamber Judges. E314/12. November 14, 2014. Transcript of Proceedings. E1/245.1. November 17, 2014. Transcript of Proceedings. E1/246.1. November 24, 2014. Decision on the Appointment of Court Appointed Standby Counsel for Khieu Samphan. E321/2. December 5, 2014. Order to Refer Conduct of Counsel for Khieu Samphan to Appropriate Professional Bodies. E330. December 19, 2014. Transcript of Proceedings. E1/337.1. August 26, 2015. Transcript of Proceedings. E1/338.1. August 27, 2015. Transcript of Proceedings. E1/342.1. September 7, 2015. Transcript of Trial Proceedings. E1/343.1. September 8, 2015. Transcript of Proceedings. E1/346.1. September 14, 2015. Transcript of Proceedings. E1/347.1. September 15, 2015. Memorandum from Trial Chamber President Nil Nonn to Dean of the Amsterdam Bar Association entitled Possible Misconduct of a Lawyer Admitted to Your Bar Association. E378. December 11, 2015. Transcript of Proceedings. E1/384.1. January 28, 2016. Memorandum from Trial Chamber President Nil Nonn to Dean of the Amsterdam Bar Association entitled Addendum—Possible Misconduct of a Lawyer Admitted to Your Bar Association—Mr. Victor Koppe. E378.1. February 19, 2016. Transcript of Proceedings. E1/402.1. March 1, 2016. Decision admitting new OCIJ Prisoner List. E393. April 5, 2016. Transcript of Trial Proceedings. E1/520.1. June 13, 2017. Transcript of Trial Proceedings. E1/521.1. June 14, 2017.

441 SELECT BIBLIOGRAPHY

Transcript of Trial Proceedings. E1/522.1. June 15, 2017. Transcript of Trial Proceedings. E1/523.1. June 16, 2017. Transcript of Trial Proceedings. E1/524.1. June 19, 2017. Transcript of Trial Proceedings. E1/525.1. June 20, 2017. Transcript of Trial Proceedings. E1/526.1. June 21, 2017. Transcript of Trial Proceedings. E1/527.1. June 22, 2017. Transcript of Trial Proceedings. E1/528.1. June 23, 2017. Nuon Chea’s Notice of Appeal Against the Trial Judgement in Case 002/02, E465/3/1, July 1, 2019.

OTHER OFFICIAL DOCUMENTS Amnesty International. “Cambodia: Extraordinary Chambers must not rush to adopt flawed Rules.” ASA 23/012/2006, November 22, 2006. Asian Human Rights Commission. “CAMBODIA: The Bar Association’s charge of exorbitant fees to foreign lawyers is immoral and is obstructing the Khmer Rouge trial.” AS-063-2007, March 23, 2007. Cambodian Defenders Project, Bar Association of the Kingdom of Cambodia, and Legal Aid of Cambodia. “Statement by Cambodian Legal Aid Groups on Judicial Independence in Khmer Rouge Trials.” October 22, 1999. Cambodian Human Rights Action Committee. “Khmer Rouge [Tribunal] Draft Law Cannot Bring Justice to Cambodians.” Press Release. January 6, 2000. ——. “Media Statement: On the Concern about the Possible Loss of Potential Witness or Suspect before ECCC.” July 14, 2006. ——. Press Release. April 25, 2005. ——. Press Release. November 25, 2005. ——. Press Release, “Judge Selection for KRT.” August 24, 2005. Cambodian People’s Party. “Statement.” August 24, 2007. “Commentary Views Prosecution of Khmer Rouge.” FBIS-EAS-95-157. August 16, 1995, p. 67. “Communique of the Cabinet of H.R.H. Prince Norodom Ranariddh, First Prime Minister of the Royal Government of Cambodia.” No. RC/MP/045/97. New York, October 28, 1997. Confidential memorandum of Hun Sen—Chuan Leekpai meeting, “Working Visit to Thailand of H.E. Second Prime Minister Hun Sen, May 6 & 7, 1998.” “Der Aufenthalt einer Delegation des GStA der DDR in der SRV vom 9. Bis 24.4.1979,” BArch DP 3/228, Bl. 56–58. Documentation Center of Cambodia. “Summary of Documentation Center of Cambodia’s 2005 Activities.” No date. ——. Promoting Accountability Project, Interviews with El Pheap, Youk Neam, Bin Nann, Rin Kheng and Thip Samphatt, Field Trip Note by Long Dany, no date (September 11, 2011). European Commission. “Commission announces support for Khmer Rouge tribunal.” EC05-170EN, April 29, 2005. European Parliament. B4-04299. Hammarberg, Thomas. “UN Position on the ‘mixed’ tribunal.” July 8, 1999.

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“History of the Combat Operations Department 1945–2000.” People’s Army Publishing House, Hanoi, 2005. Human Rights Watch. “Donors Should Recognize How Government Tactics Threaten Entire Process.” December 5, 2006. International Federation for Human Rights. “The ECCC funding crisis must be swiftly resolved.” September 20, 2013. Khieu, Samphan. “Deuxième lettre ouverte à mes compatriotes.” December 29, 2003. Kingdom of Cambodia. Code of Criminal Procedure of the Kingdom of Cambodia. Khmer-English Translation, First Edition, Editions Angkor, September 2008. ——. Criminal Code. Khmer-English Translation, Bunleng Cheung, trans., May 2011. ——. “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for Prosecution of Crimes Committed during the Period of Democratic Kampuchea.” Reach Kram No. NS/RKM/0801/12, 10 August 2001. ——, “Law on the Outlawing of the Democratic Kampuchea Group,” Reach Kram No. 01.NS.94, July 15, 1994. ——. Preah Reach Kret. No. NS/RKT/0506/214, May 7, 2006. ——. Preah Reach Kret. No. NS/RKT/1105/466, November 12, 2005. ——. Royal Decree NS/RKM/1004/004, October 19, 2004. ——. Royal Decree NS/RKM/1004/006, October 27, 2004. ——. Royal Pardon of Ieng Sary. NS/RKT/0996/72, September 14, 1996. Letter and memorandum from James Goldston to Nicolas Michel and Warren Sach, February 1, 2005. Letter from First Prime Minister Norodom Ranariddh and Second Prime Minister Hun Sen to UN Secretary-General Kofi Annan, June 21, 1997. Letter from John Dauth, Permanent Representative of Australia, Michel Duclos, Chargé d’affairs of the Permanent Mission of France, and Kenzo Oshima, Permanent Representative of Japan, to Secretary-General Kofi Annan, April 15, 2005. Open Society Justice Initiative. “Corruption Allegations at Khmer Rouge Court Must Be Investigated Thoroughly.” February 14, 2007. ——. “Issues of Priority Concerning the Extraordinary Chambers Issues of Priority Concerning the Extraordinary Chambers.” August 8, 2005. ——. Press Release. October 11, 2011. ——. “Recent Developments at the Extraordinary Chambers in the Courts of Cambodia.” June 2011. ——. “Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: September 24, 2007 Update.” September 24, 2007. ——. “Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: Threat to Permanently Stay Cases 003, 004 and 004/2.” June 2017. ——. “Support to the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea.” [no date]. ——. “The Future of Case 003/004 at the Extraordinary Chambers in the Courts of Cambodia.” October 2012. People’s Republic of Kampuchea. “Decree Law on the Punishment of Betrayers of the Revolution.” No. 2 KC, May 5, 1980. Trans. Kingdom of Cambodia, Council of Ministers, Secretariat of the Task Force, 2004.

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“Press Conference by the United Nations Group of Experts,” November 17, 1998, Hotel Le Royal, Phnom Penh. “Report to the President by Mr. Justice Jackson, June 6, 1945.” Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials: London, 1945. Washington, DC: GPO, 1949. Royal Government of Cambodia. “Decision” of the Constitutional Council. February 12, 2001. ——. “Indictment of Duch.” No. 029/99. Military Court, Phnom Penh, May 10, 1999. ——. “Indictment of Ung Choeun (aka Ta Mok).” No. 019/99. Military Court, Phnom Penh, March 9, 1999. ——. Investigating Judge of the Military Court, Detention Order, No. 176/99. Military Court, Phnom Penh, September 10, 1999. ——. Investigating Judge of the Military Court, Detention Order, No. 15DK/2002. Military Court, Phnom Penh, February 22, 2002. ——. Investigating Judge of the Military Court, Detention Order, No.  16DK/2002. Military Court, Phnom Penh, February 22, 2002. ——. Investigating Judge of the Military Court, Detention Order, No. 08/05. Military Court, Phnom Penh, February 28, 2005. ——. Law on Temporary Detention Period. National Assembly, Kingdom of Cambodia, August 14, 1999. ——. Prosecutor of the Military Court, Indictment, No.  012/99. Military Court, Phnom Penh, May 10, 1999. ——. Prosecutor of the Military Court, Order to Forward Case for Investigation, No. 019/99. Military Court, Phnom Penh, March 9, 1999. ——. Prosecutor of the Military Court, Order to Forward Case for Investigation, No. 044/99. Military Court, Phnom Penh, September 6, 1999. Royal Government of Cambodia, Council of Ministers. “Aide Memoir on the conversation between Hun Sen, Prime Minister of the Royal Government of Cambodia, and H.E. Kofi Annan, Secretary-General of the United Nations” (unofficial translation). September 16, 1999. ——. “Declaration of Samdech Hun Sen, Prime Minister of the Royal Government of Cambodia and Commander-in-Chief of the Cambodian National Armed Forces.” January 1, 1999. ——. “Draft Aide Memoire: Meeting between the Cambodian Task Force on the Khmer Rouge Tribunal and the visiting UN Delegation.” August 26, 1999. ——. “Draft Aide Memoire: Second Meeting between the Cambodian Task Force on the Khmer Rouge Tribunal and the visiting UN Delegation.” August 28, 1999. ——. “Instrument of Ratification of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea.” Ministry of Foreign Affairs and International Cooperation, October 19, 2004. ——. Joint Statement by Deputy Prime Minister His Excellency Sok An and Ambassador David Scheffer, Special Expert to the Secretary-General of the United Nations, Phnom Penh, January 24, 2012. ——. “Judges and Prosecutors to the KRT decided by Supreme Council of the Magistracy.” Confidential, May 4, 2006.

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——. “Law on the Establishment of Extraordinary Formation in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,” 2nd draft (unofficial translation). December 1999. ——. “Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea.” January 2, 2001. ——. Letter from Hun Sen to Kofi Annan, February 10, 2000. ——. Letter from Sok An to Hans Corell, March 20, 2000. ——. Letter from Sok An to Hans Corell, November 23, 2001. ——. Letter from Sok An to Hans Corell, January 22, 2002. ——. Press and Quick Reaction Unit. Ek Tha, “Foreign diplomats exchange views with Cambodia over the ECCC.” May 18, 2013. ——. Press and Quick Reaction Unit. Press Statement. January 12, 2012. ——. “Remarks at the Reception following the Swearing In of National and International Judicial Officers for the Extraordinary Chambers in the Courts of Cambodia, by His Excellency Sok An.” July 3, 2006. ——. “Remarks by His Excellency Sok An Senior Minister, Minister in Charge of the Office of the Council of Ministers, Chairman of the Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders.” June 6, 2003. ——. “Speech by Samdech Krom Preah Norodom Ranariddh Made in Conjunction with the ‘International Conference on Striving for Justice: International Law in the Cambodian Context.’ ” Phnom Penh, August 21, 1995. ——. Statement by H.E. Mr. Ouch Borith Ambassador, Permanent Representative of the Kingdom of Cambodia to the United Nations at the Third Committee of the 57th Session of the United Nations General Assembly, New York, May 1, 2003. ——. “Statement from the Royal Government of Cambodia in Response to the Announcement of UN Pullout From Negotiations on Khmer Rouge Trial,” February 12, 2002. Royal Palace. “Communiqué from Norodom Sihanouk of Cambodia.” August 30, 2007. ——. Letter from Michelle Lee to Kong Sam Ol, September  6, 2007, annotated by Norodom Sihanouk and dated September 6, 2007 (unofficial translation). ——. Message from King-Father Norodom Sihanouk to CPP Chairman Chea Sim. August 25, 2007. ——. Norodom Sihanouk, “Etudes Cambodgiennes, Complice des Khmers Rouges . . . ,” Part 5, undated handwritten 3-page note, downloaded from http://noro domsihanouk.info on September 14, 2007 (unofficial translation). State of Cambodia. “Appeal of the International Seminar on the Genocide Phenomenon and Prevention of Their Return Held in Phnom Penh, Cambodia, July 22nd 1989.” Typescript. ——. “Law on Criminal Procedure.” March 8, 1993. State Council, State of Cambodia, trans. Kingdom of Cambodia, Council of Ministers, Secretariat of the Task Force, 2004. ——. “Law on Criminal Trial Procedures.” July 26, 1989. State Council, trans. Kingdom of Cambodia, Council of Ministers, Secretariat of the Task Force, 2004. Supplemental Agreement between the United Nations and the Royal Government of Cambodia Ancillary to the Agreement between the United Nations and the Royal

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Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea regarding Utilities, Facilities and Services. March 14, 2006. Supplemental Agreement between the United Nations and the Royal Government of Cambodia Ancillary to the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea regarding Safety and Security Arrangements. March 14, 2006. The Cambodian Genocide Justice Act, 22 U.S. Code 2656 (1994). “Überlegungen zu weiteren Maßnahmen in Auswertung des Prozesses gegen Pol Pot und gegen Ieng Sary.” BArch DP 3/2228, Bl. 3. United Nations. AS. General Assembly. Security Council. Identical Letters dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council. A/53/850, S/1999/231, March 16, 1999. ——. Annex, Report of the Group of Experts for Cambodia established pursuant to General Assembly. Resolution 52/135, A/53/850, S/1999/231, 16 March 1999. United Nations Assistance to the Khmer Rouge Tribunal. Extraordinary Chambers Staffing Requirements. [no date]. ——. Minutes, United Nations Assistance to the Khmer Rouge Trials, Meeting with Interested States. April 15, 2004. ——. Press Statement, International Judges of ECCC say April plenary is not possible. April 3, 2007. ——. Report of the Technical Assessment Team on its visit to Cambodia 7 to 13 December 2003. United Nations. Commission on Human Rights. Resolution 1997/49. United Nations. Email from UN Special Expert David Scheffer to Supreme Court Judge Nihal Jayasinghe entitled Note from David Scheffer. February 17, 2013. ——. Email from UN Special Expert David Scheffer to Supreme Court Judge Nihal Jayasinghe entitled Note from Special Expert Scheffer. April 16, 2013. United Nations. General Assembly. France and Japan: draft resolution, Khmer Rouge trials. A/C.3/57/L.70, November 13, 2002. ——. General Assembly Approves Draft Agreement Between UN, Cambodia on Khmer Rouge Trials. GA/10135, May 13, 2003. ——. Khmer Rouge Trials. A/RES/57/228, December 18, 2002. ——. Khmer Rouge Trials: Programme budget implications of draft resolution A/C.3/57/L.90. A/C.3/57/L.91, April 30, 2003. ——. Letter from the Secretary-General to the President of the General Assembly. A/52/1007, August 7, 1998. ——. Netherlands Statement on the Khmer Rouge Trials. May 2, 2003. ——. Report of the Secretary-General on the Khmer Rouge Trials. A/57/769, March 31, 2003. ——. Report of the Secretary-General on the Khmer Rouge Trials. A/58/617, December 3, 2003. ——. Report of the Secretary-General on the Khmer Rouge Trials. A/59/432, October 12, 2004. ——. Report of the Secretary-General on the Khmer Rouge Trials. A/59/432/Add.1, November 16, 2004.

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——. Report of the Secretary-General on the Khmer Rouge Trials. A/59/432/Add.1*, November 29, 2004. ——. Report of the Secretary-General on the Khmer Rouge Trials. A/60/565, November 25, 2005. ——. Report of the UN Special Representative of the Secretary General for Human Rights in Cambodia. A/49/635, November 3, 1994. ——. Situation of Human Rights in Cambodia. Resolution A/52/135, December  12, 1997. ——. Swedish statement on Khmer Rouge Tribunal. May 2, 2003. ——. Third Committee. GA/SHC/3733, May 1, 2003. ——. Third Committee Approves Draft Resolution on Khmer Rouge Trials. GA/ SHC/3734, May 2, 2003. United Nations. Office of Legal Affairs. A Pre-trial Chamber to Settle Differences Between the Co-investigating Judges or the Co-prosecutors. April 18, 2000. ——. Comments on the Draft Law Concerning the Punishment of the Crime of Genocide and Crimes Against Humanity. August 27, 1999. ——. “History of the Negotiations on the Khmer Rouge Tribunal Between the United Nations and Cambodia: A Chronology.” February 8, 2002. ——. Law on the Establishment of a Tribunal for the Prosecution of Khmer Rouge Leaders Responsible for the Most Serious Violations of Human Rights (draft). August 27, 1999. ——. Letter from David Hutchinson to Sean Visoth. February 24, 2006. ——. Letter from Hans Corell to Sok An. January 9, 2001. ——. Letter from UN Under-Secretary-General Nicolas Michel to UN Missions. June 20, 2005. ——. Non-Paper on Khmer Rouge Trial. January 5, 2000. ——. Note from Ralph Zacklin to Warren Sach. December 27, 2005. ——. UN Proposal on Pre-Trial Chamber of April 18, 2000. United Nations. Office of the Comptroller. Note from Warren Sach to Mark Malloch Brown on United Nations Assistance to the Khmer Rouge Tribunal. April 20, 2005. ——. Letter from Warren Sach to Sok An. December 2005. United Nations. Office of the High Commissioner for Human Rights. “Rule-of-Law Tools for Post-Conflict States: Maximizing the legacy of hybrid courts.” 2008. United Nations. Press Briefing By United Nations Legal Counsel. February 8, 2000. United Nations. Press Release. Ambassador David Scheffer, U.N. Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Tribunal, Statement. September 4, 2013. ——. Daily Press Briefing by the Office of the Spokesman for the Secretary-General. January 2, 2001. ——. Daily Press Briefing by the Office of the Spokesman for the Secretary-General. February 8, 2002. ——. Daily Press Briefing by the Office of the Spokesman for the Secretary-General. August 20, 2002. ——. GA/SHC/3728, November 20, 2002. ——. “Governments Pledge $38.48 Million for Khmer Rouge Trials in Cambodia, Pledging Conference for UN Assistance to the Khmer Rouge Trials.” L/3082, March 28, 2005.

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——. Highlights of the Noon Briefing by Fred Eckhard, Spokesman for the SecretaryGeneral of the United Nations. January 11, 2002. ——. Highlights of the Spokesman’s Noon Briefing by Stephane Dujarric, Spokesman for the Secretary-General, UN Headquarters. November 23, 2005. ——. “Secretary-General Clarifies Position on Cambodian Government Responsibility for Trials of Former Khmer Rouge Leaders.” SG/SM/7868, June 27, 2001. United Nations. Statement to the press by Ambassador Thomas Hammarberg. May 20, 1999. United Nations. The Secretary- General. Briefing to the Security Council on Visit to Southeast Asia. February 29, 2000. United Nations. “UN and Cambodia Ink Agreement on Khmer Rouge Trials, Highlights of the Spokesman’s Noon Briefing,” UN Headquarters, New York. March 14, 2006. United Nations Transitional Authority in Cambodia. “Provisions Relating to the Judiciary and Criminal Law and Procedure Applicable in Cambodia During the Transitional Period.” September 10, 1992. Supreme National Council, trans. Kingdom of Cambodia, Council of Ministers, Secretariat of the Task Force, 2004. U.S. Congress. House. Committee on Foreign Affairs. Subcommittee on Asian and Pacific Affairs. Testimony of Mr. Michael Young, Deputy Legal Advisor, Department of State, before the Subcommittee on Asian and Pacific Affairs and the Subcommittee on International Economic Policy and Trade. 101st  Cong., 1st  sess., November 17, 1989. U.S. Congress. House. Khmer Rouge Prosecution Act. 102nd Cong., 2nd sess., July 28, 1992. H.R. 5708. U.S. Congress. Senate. Khmer Rouge Prosecution and Exclusion Act. 102nd Cong., 2nd sess., April 10, 1992. S.2622. U.S. Congress. Senate. Committee on Appropriations. 111th Cong., 1st sess., July 9, 2009. S.1434. ——. 111th Cong., 2nd sess., July 29, 2010. S.3676. ——. 112th Cong., 1st sess., September 22, 2011. S.1601. ——. 112th Cong., 2nd sess., May 24, 2011. S.3241. ——. 113th Cong., 1st sess., July 25, 2013. S.1372. ——. 113th Cong., 2nd sess., June 19, 2014. S.2499. ——. 114th Cong., 1st sess., October 5, 2015. S.2130. ——. 114th Cong., 2nd sess., June 29, 2016. S. Rept. 114–290. ——. 114th Cong., 2nd sess., June 29, 2016. S.3117. U.S. Congress. Senate. Committee on Appropriations. Subcommittee on Foreign Operations. Secretary Colin  L. Powell, Testimony before the Senate Appropriations Subcommittee on Foreign Operations. 108th Cong., 1st sess., April 30, 2003. ——. Statement of U.S. Senator Mitch McConnell, Senate Foreign Operations Appropriations Subcommittee. 108th Cong., 1st sess., April 30, 2003. U.S. Congress. Senate. Committee on Foreign Relations. The Khmer Rouge Prosecution and Exclusion Act. 103rd Cong., 1st sess., July 23, 1993. Title VI, S.1281, S. Rept. 103–107. ——. David J. Scheffer, Ambassador-at-Large-Designate for War Crimes Issues, Statement at confirmation hearing before the Senate Foreign Relations Committee. 105th Cong., 1st sess., July 15, 1997.

448 SELECT BIBLIOGRAPHY

——. Statement of Charles  A. Ray, Ambassador-designate to Cambodia, Before the Senate Foreign Relations Committee. 107th Cong., 2nd sess., October 1, 2002. U.S. Department of State. Secretary James Baker, “Remarks at the Paris Conference on Cambodia, Paris, France, October 23, 1991.” US Department of State Dispatch, Vol. 2, No. 43, October 28, 1991. U.S. Department of State. U.S. Embassy Phnom Penh Cable. Cambodia’s ECCC Making Good Progress. October 10, 2006. ——. Friends of the ECCC Discuss Budget and Judicial Calendar. January 14, 2010. ——. KRT Developments. November 2, 2006. ——. KRT Judges Named: The Good, the Bad, and the Ugly. May 6, 2006.

INDEX

Adams, Brad, 45, 187, 195, 211, 318 ADHOC. See Cambodian Human Rights and Development Organization Agency for International Development, 122–123 Agrarian Law of 1950, 15 AI. See Amnesty International Akhavan, Payam, 107 Albright, Madeleine, 48–49, 64 Algeria, 28, 242 Algerian National Liberation Front, 242 Alliance of Democrats, 123 American Bar Association, 6–7 American Refugee Committee, 182 amnesty, 31, 42, 349 Amnesty International (AI), 32, 45, 155, 183, 304, 383n19; classical legalism and, 6, 335 Angkar (“Organization”), 1, 152 Ang Udom, 167, 323 Anlong Veng, 53, 325 Annan, Kofi, 52, 65, 91, 100, 103, 105, 115, 340; diplomatic delegation meeting with, 114; Group of Experts report to, 57; Hor Nam Hong meeting with,

58–59; Hun Sen calls with, 108–109; Hun Sen letters with, 60–61, 82, 84, 86, 88–90, 108–109; Hun Sen meeting with, 73, 83, 88; legal standards demanded by, 99, 114, 339; mandate sought by, 109–113; number of indictees and, 198; task force delegation meeting with, 114; tribunal funding and, 124, 127, 139–141; tribunal negotiations and, 73, 77–79, 82–83; on tribunal negotiation withdrawal, 106; tribunal reports by, 124, 127, 165; tribunal reservations, 89, 104–105, 116, 124; tribunal staff status and, 162–163 Ao An (aka Ta An), 294, 323–324, 327, 330–334, 344 Arrest and Detention Order, negotiations of definition for, 215 arrest warrants, 134, 183, 221, 235, 325–327 Article 5 bis proposal, 86–90 ASEAN. See Association of Southeast Asian Nations Asian Human Rights Commission, 211 Association of Southeast Asian Nations (ASEAN), 33–34, 306

450 INDEX

Au Kansang Security Office, 283, 285 Australia, 23, 110–111; CDC and, 34; judicial selection and, 158, 161; Scheffer approach to, 50; Stanton appeal to, 33; tribunal funding and, 122, 139–141, 317–319; tribunal negotiations by, 106, 110–112, 114, 340 authoritarianism, 8, 12, 336 Axworthy, Lloyd, 49 Baker, James, 38 Ban Ki-Moon, 269, 300, 305; Hun Sen and, 298, 306; Kasper-Ansermet and, 306, 308; on KRT finance issues, 317 Bar Association Council, 213 Bar Association of the Kingdom of Cambodia, 166, 194–195, 209–213, 260, 341; Defense Support Section and, 201; foreign defense attorneys and, 201–203, 209 Barbie, Klaus, 126, 242 Bassiouni, Cherif, 345 Bassu, Giovanni, 191–192 Baudesson, Christian, 235 Beauvallet, Olivier, 322 Belgium, tribunal funding and, 141 Benson Samay, 167, 188 Bergsmo, Morten, 187 Bismarck, Otto von, 3 Bit Seanglim, 323 Blunk, Siegfried, 298–300, 322; background, 298; investigation of, 301; resignation of, 303; strategic legalism and, 343 Bohlander, Michael, 327, 329–330, 343–344; Ao An indicted by, 331; Im Chaem charges dismissed by, 329; Meas Muth indicted by, 332; Yim Tith indicted by, 333–334 Bolsheviks, 10 Boudouin, Patrick, 318 Bouhired, Djamila, 242 Bou Meng, 189, 238 Boyle, David, 191–192 Bridges, Stephen, 131, 133, 139; judicial selection responses, 157 Brown, Mark Malloch, 142

Bun Rany, 195 bureaucratism, 14 Bush, George W., 95, 102 Cambodge Soir (news service), 186 Cambodia: civil law system in, 10, 22, 134, 162, 166, 185, 189, 201; Communist Party of Kampuchea taking over, 1, 10; constitution of 1947, 9; constitution of 1993, 23, 72, 96–97, 177, 185; demographics of, 259, 396n158; dictators in, 9; elections of 2013, 312–313; France installing king of, 10; French colonization and, 9; instrumental legalism in, 18, 22–23, 62, 175–176, 183, 336–337, 339–344; international criminal tribunal requested by, 36, 40, 43, 46, 50–51, 67, 338; judicial police, 69, 167–168, 185–186, 215, 325–326; legal staff shortage in, 20–21, 149–150; legal systems, 18–24; penal code of 1956, 10, 96–97, 177, 248, 331; rule by law in, 23; tribunal funding and, 139–140, 142–143, 170–171; USSR and legal framework of, 23; Vietnam attacked by, 25–26; Vietnam invasion of, 26–27 Cambodia Daily, The (newspaper), 92, 171 Cambodia Genocide Project, 32–33, 337, 363n47 Cambodia-Japan Cooperation Center, 193 Cambodian Action Committee for Justice and Equity, 231 Cambodiana Hotel, 145–146 Cambodian Centre for Human Rights, 305 Cambodian Chamber of Commerce, 171 Cambodian Defenders Project, 126, 168 Cambodian Documentation Commission (CDC), 32–34, 41, 45, 337 Cambodian Genocide Justice Act, 40–41, 337 Cambodian Genocide Program (CGP), 41–44, 337–338, 363n47 Cambodian Human Rights Action Committee (CHRAC), 154, 168, 188, 325

451 INDEX

Cambodian Human Rights and Development Organization (ADHOC), 350 Cambodian Justice Initiative, 203 Cambodian People’s Party (CPP), 22, 42, 44, 47, 52, 55, 92, 122–123, 231, 260–261, 334, 339, 354; KasperAnsermet investigation of, 311–312; Koppe claiming guilt by, 275, 278; membership dues for, 208; Nuon Chea allegations against, 266–267, 272–273; staffing challenges and, 150; Standing Committee, 22, 151 Campaign to Oppose the Return of the Khmer Rouge (CORKR), 38–40, 337 Canada: tribunal funding and, 141, 174; universal jurisdiction and, 49–50 Canonne, Philippe, 253 capital punishment, 96 Carlos the Jackal, 126, 242 Carr, Edward Hallett, 7 Cartwright, Silvia, 161, 191, 200–201, 203, 207, 214, 254, 274 Case 001, 234, 236–238; appeals in, 255; civil parties and, 249–250; closing arguments, 251–254; Closing Order for, 248; Final Submission for, 248; public access to materials from, 348; re-enactment in, 237–238; Rule 66 Notification, 247 Case 002, 234, 236, 297, 322, 342–343; Closing Order for, 270–271; Final Submission for, 270; judicial investigations in, 255–259; OCIJ and, 255–259, 264, 268–269; Pre-Trial Chamber and, 256, 264, 267–268; SCC rulings on, 271; severance of, 271, 282–283; Supplementary Submission in, 294; trial record for, 279 Case 002/01, 271; appeals in, 281; civil parties and, 280; closing arguments in, 275, 278–279; reparations and, 349; trial of, 273–278; verdict in, 279–280 Case 002/02, 271, 282–289; appeals in, 288; boycott of, 283–284; closing arguments in, 285–288; genocide

charges in, 284; trial of, 283–285; verdict in, 288 Case 003 (Sous Met and Meas Muth), 294, 297, 306, 319, 342–343; Blunk and, 298; civil parties and, 323–324; Closing Orders for, 332–333; defense attorney assignments for, 323; delays in, 334; falsified documents in, 302; Final Submission for, 331; investigation of misbehavior in, 301–302; investigation resuming in, 307; Kasper-Ansermet and, 304–305, 312; Rule 66 Notification, 299; slow-walk plan for, 297–298; United States financing conditions and, 316 Case 004 (Yim Tith), 292, 294, 297, 319, 342–343; Blunk and, 298; civil parties and, 323–324; Closing Orders for, 333–334; delays in, 334; KasperAnsermet and, 304, 312; representation assignments for, 323; Rule 66 Notification, 333; severance of, 327–328; slow-walk plan for, 297–298 Case 004/01 (Im Chaem), 327; Closing Order for, 329; Rule 66 Notification, 328 Case 004/2 (Ao An), 319; Closing Orders for, 331; Rule 66 Notification, 330 case files, 227, 248–249; Final Submissions and, 247–248; First Introductory Submission and, 221; material not in, 347; Mok and, 180, 186, 189; tainted in Case 003, 299–303 Case Matrix, 187 Cayley, Andrew, 274, 299–300, 308–309 CCP. See Chinese Communist Party CDC. See Cambodian Documentation Commission Center for Social Development, 195, 211 CGDK. See Coalition Government of Democratic Kampuchea CGP. See Cambodian Genocide Program Chaktomak Theater, 119, 130, 140, 145–146 Cham people, 1, 33, 283–286, 288–289, 291; genocide of, 196, 283–285, 288, 330–331

452 INDEX

Chandler, David, 348 Chan Youran, 53 Chapter VII tribunals, 49, 51, 61, 64, 338 Chea Leang, 178, 180–181, 187, 194, 196, 206–207; Ao An and, 330; Case 002/02 and, 285–286; in CoProsecutors’ disagreement, 294; Duch case charges and, 240–241; in Duch trial, 253; education of, 21, 167; Im Chaem and, 328–329; Internal Rules and, 216, 342; Introductory Submissions and, 221, 223, 296; Kasper-Ansermet and, 308; on KRT standards, 347; Meas Muth and, 332; pretrial detention rules and, 216; on scope of crimes, 184; second set of suspects and, 293–294; Sok An and, 21, 339; Van Rith and, 223 Cheam Channy, 157 Chea Sim, 19, 138, 231, 353; KasperAnsermet and, 309, 311; Nuon Chea defense team accusations against, 261, 272–273, 275; Nuon Chea defense team requests to interview, 266; Sam Rainsy allegations against, 313 Chev Keng, 262 Chhang, Youk, 147, 160, 319, 349; on Cambodia funding for KRT, 171–172; demands investigation of You Bunleng, 303 Chinese Communist Party (CCP), 14 Choeung Ek “Killing Fields” Memorial, 85, 237–238, 248, 283 CHRAC. See Cambodian Human Rights Action Committee Chum Mey, 238, 313 Chuon Sun Leng, 155–156, 167 Church World Service, 32 civil law, 10, 13, 166; case files in, 249; criminal proceeding parties under, 249; investigating judges and, 227; investigation work under, 185; KRT hybrid approach to, 227, 249 civil parties, 22, 249; appeals by, 302, 329; Case 001 and, 236, 249–250, 252–253; Case 002/01 and, 244, 280; Case 002/02 and, 287; Case 003 and, 299,

302, 323–324; Case 004 and, 323–324; reparations and, 280, 350; testimonies submitted by, 257 civil society, 134, 158–159, 168, 188, 195, 333, 337 classical legalism, 8, 62, 79, 176, 290, 344–345; civil society and, 337; Corell and, 76, 339–340; defined, 4–6; Kasper-Ansermet and, 343; KRT judges and, 183, 341–342; Lemonde and, 297; politics in, 5, 335–336; Trial Chamber and, 342; UN Secretariat and, 139, 231, 339, 352–353 class warfare, law and, 17 Closing Orders, 202–204, 207, 247–248, 316; for Case 001 (Duch), 248; for Case 002, 270–271; for Case 003 (Meas Muth), 332–333; for Case 004 (Yim Tith), 333–334; for Case 004/01 (Im Chaem), 329; for Case 004/02 (Ao An), 331; Ieng Sary appeal of, 276 Coalition Government of Democratic Kampuchea (CGDK), 33 Code of Criminal Procedure (Cambodia), 23, 177, 216 Code Penale, 10 Coffey, Paul, 160–161 common law, 78, 162, 177; adversarial trial approach of, 249; criminal proceeding parties under, 249; trial process under, 227 communes, 197–198 Communist Party of Kampuchea (CPK). See Khmer Rouge Communist Party of the Soviet Union (CPSU), 11 Constitutional Council: revised tribunal law and, 97–98, 138; tribunal law and, 96 Consultative Group, 139–140 Convention on the Prevention and Punishment of the Crime of Genocide, 25, 30, 32–35, 38, 42, 64, 71, 289 cooperatives, 20, 198, 275, 283, 285 Corell, Hans, 98–100; background of, 76; classical legalism and, 76, 79,

453 INDEX

339–340; diplomat delegation meeting with, 114; SCSL and, 101, 128; Sok An letters with, 89, 95–96, 98, 101–104; third-party dispute resolution mechanism proposals and, 86–88; on tribunal law, 104–106; tribunal law and, 102, 137; tribunal negotiations and, 76, 78–79, 81–93, 113–116; UN-Cambodia agreement signing and, 119; UNGA Third Committee and, 117; UN withdrawal from negotiations and, 104–105, 107 CORKR. See Campaign to Oppose the Return of the Khmer Rouge corruption allegations, 207–208, 260–263 Council for Legal and Judicial Reform, 230 Council of Ministers, 19, 44; CGP draft tribunal law and, 44, 338; draft UN-Cambodia agreement approved by, 119; Kasper-Ansermet and, 310–311; tribunal law and, 78–80, 96–97, 137 CPK. See Khmer Rouge CPK Standing Committee, 10, 29, 59, 181–182, 197, 199–200, 222, 237, 252, 258, 285, 292, 362n26, 390n188 CPP. See Cambodian People’s Party CPSU. See Communist Party of the Soviet Union Craig, Gregory, 49 Craner, Lorne, 103 crime base, 200, 219, 291, 293 crimes against humanity, 39–40, 182–184, 216–217; Annan and, 59, 65; in Case 001 (Duch), 229, 255; in Case 002/01, 279–280, 282; in Case 002/02, 288; in Case 003 (Meas Muth), 325, 327–328, 332; in Case 004 (Yim Tith), 327; in Case 004/01 (Im Chaem), 325, 328; in Case 004/02 (Ao An), 330–331; civil parties and, 249; Group of Experts and, 53, 57; OCP and, 187, 196; Sihanouk and, 74; Zacklin and, 69, 71 Criminal Law of 1979 (China), 15–16

Criminal Procedure Code, 23, 162, 169, 191 criminal procedure law, 168, 177 Criminal Procedure Law (China), 15–16 Cultural Revolution, 14–16 cultural traditions, legalism and, 5 Dara Vanthan, 246 death penalty, 72, 96 Decree Law Number 1, “to Try the Pol Pot-Ieng Sary Clique for the Crime of Genocide,” 29–30, 72 Decree Law Number 2, “On the Penalty of Revolution’s Betrayal and Some Penalties of Other Betrayals,” 18–19 defense attorneys, 225, 241–242, 277–278; in Cambodian legal system, 22; in rules debate, 201–202; sanctions against, 281, 284, 312; training of, 166–167; You Bunleng and, 179 Defense Support Section, 193–195, 201, 207, 213, 281, 284, 314, 323 Democratic Republic of the Congo, 228 Democratic Republic of Vietnam (DRV), 16–18; East Germany assisting, 17 Despouy, Leandro, 230 deva-raja (god-king), 9 Din Sivuthy, 155–156 district level, 197–198, 293 Dith Munty: background of, 21–22, 151; Bunleng appointment to Court of Appeals and, 230; as defense attorney, 152; Extraordinary Chambers judge consideration, 151–153, 155; PRT and, 27–28, 337 Doctrine of Substantive Truth, 12, 336 Documentation Center of Cambodia, 41–42, 53, 147, 160, 348–349, 363n47, 390n188; demands for reimbursement of, 315–316; judicial police training by, 185–186; Khmer Rouge Watch project, 188; legal trainings by, 167; on tribunal finances, 319; tribunal funding and, 171; unusual investigator behavior report by, 301; Vergès and, 246; You Bunleng investigation demanded by, 303

454 INDEX

Doi Moi (“renovation”) era, 17 double jeopardy, 276 Downer, Alexander, 122 Downing, Rowan, 158, 161, 244, 264, 268, 302, 307 Draft Internal Procedures and Regulations, 190–191 DRV. See Democratic Republic of Vietnam Duch. See Kaing Guek Eav, “Duch” Dunlop, Nic, 182 EAC. See Extraordinary African Chambers East Germany: assistance to People’s Revolutionary Tribunal, 27; Cambodian lawyers trained in, 21, 150; Vietnam assistance from, 17. See also German Democratic Republic ECCC. See Khmer Rouge Tribunal Eichman, Adolf, 228 Ek Sam Ol, 137–138, 169 Ek Tha, 311 Ellis, Diana, 242 Ellis, Mark, 211 European Commission: tribunal funding and, 141, 174 European Parliament, Cambodia resolutions, 60 evidence: exculpatory, 398n201; Group of Experts and, 48, 52–53; inculpatory, 291, 398n201; at the PRT, 28, 30; rules of, 125, 162, 166, 168–169, 189; torture-tainted, 256, 287; Trial Chamber and, 249, 288, 347; Vyshinsky legal theory and, 12 Extraordinary African Chambers (EAC), 421n9 Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal/ ECCC). See Khmer Rouge Tribunal Extraordinary Chambers Security Commission, 146, 168, 185–186, 326 Fenz, Claudia, 161, 200–201 FIDH. See International Federation for Human Rights

Final Submissions, 247–248; on Ao An, 330; in Case 002, 270; on Duch, 248; on Im Chaem, 328; on Meas Muth, 331; on Yim Tith, 333 1st January Dam worksite, 283, 285 Florent, Jean Luc, 131 foreign defense attorneys, 202, 204, 209, 212; credentialing of, 201–203 foreign policy, law and power tension in, 7 Foster, Peter, 208, 230, 232–233 France, 23; Algeria and, 242; Cambodia and, 9–10; classical legalism and, 352; judicial selection and, 158, 161, 322, 340; PRT and, 28; rules debate and, 192; Special Military Court and, 10; strategic legalism and, 352; tribunal funding and, 130–132, 139–141, 158, 317; tribunal law and, 74; tribunal negotiations by, 64, 81–82, 106, 112, 114, 117, 340; Vietnam and, 16 French Communist Party, 242 FUNCINPEC party, 123 funding, 124–125, 149, 313–322; budget battles, 127–133; finding, 139–143; national side of tribunal, 144, 170–174 Galabru, Kek, 147 Geneva Conference of 1954, 16 Geneva Conventions of 1949, 17, 255, 327. See also war crimes genocide, 25; Case 002/02 charges of, 284–286; Case 003 (Meas Muth) charges of, 327–328, 331–332; Case 004/02 (Ao An) charges of, 330–331; Case 004 (Yim Tith) charges of, 327; International Seminar on the Genocide Phenomenon, 35; justice for, as political tool, 36, 337–338; Khmer Rouge deflecting blame for, 273–274; KRT convictions for, 288; negotiations over definitions of, 70–71; preliminary investigations of, 196; PRT and, 25, 27–30, 270; scholarly debate on, 289; scope of allegations of, 184; U.S. policy on, 37–40, 103; Vietnam and China

455 INDEX

agreement on, 37. See also Convention on the Prevention and Punishment of the Crime of Genocide genocide denial law, 313 German Democratic Republic, 27; civil code in, 13; PRT and, 27–28, 336; training of Cambodian lawyers in, 22, 150; Vietnam and, 17. See also East Germany Germany: judicial selection and, 158, 298, 340; KRT funding and, 141, 174; outreach activities funded by, 158, 351; universal jurisdiction and, 50; USSR occupation of, 13 Ghai, Yash, 230 Gillison, Douglas, 303 GIS. See Group of Interested States glossary of terms, negotiating, 215 Goldston, James, 147, 304 Gorbachev, Mikhail, 34 Gour, Claude, 64 Great Leap Forward, 15 Group of Experts, 48, 52–54, 57–59, 338 Group of Interested States (GIS): budget and, 128, 130–133; Case 002 and, 271; judicial selection and, 158; staffing estimates and, 149; venue relocation and, 147 Guiraud, Marie, 287 Guisse, Anta, 286–287 Hamill, Rob, 302 Hammarberg, Thomas, 44–45, 47, 56, 64–65, 77 Hand, Louise, 110–111 Hannum, Hurst, 33 Harmon, Mark, 158, 322–327, 343–344 Hawk, David, 32–33, 41, 45 Hayden, Bill, 33 Heder, Steve: on personal jurisdiction, 198; resignation of, 300; Sean Visoth on, 205–206; seconded to OCP, 184, 187 Heng Samrin, 28, 231, 261, 272–273, 275, 279, 311; Nuon Chea defense team requests to interview, 266 Heng Vong Bunchhat, 125

Henrot Raken, 134–136, 151, 155 Herrel, Karsten, 123–125, 127, 129–131, 145, 148 Ho Chi Minh, 17 Holbrooke, Richard, 90 Holder, Eric, 49 Holocaust, 228 Hong Kimsuon, 253 Hor Nam Hong, 56, 93, 101, 108, 138, 173, 209, 272–273, 303; Annan meeting with, 58–59; Case 003 and, 298; rule-making and, 342 Hotel Le Royale, 177, 214 HRW. See Human Rights Watch Human Rights Center (Berkeley), 351 Human Rights Center (Phnom Penh), 45 Human Rights Watch (HRW), 187, 195, 305, 325; Blunk and Bunleng criticized by, 303; on Cambodian Bar Association, 201, 211; classical legalism and, 6, 335; Koppe and, 275; pretrial detention and, 183; on tribunal finances, 318 Hun Sen, 24, 41–47, 96–98, 100, 123, 354–355; Aide Memoire from, 72–73, 75; Annan calls with, 108–109; Annan letters with, 60–61, 82–84, 86, 88–90, 108–109, 115, 306; Annan meetings with, 83, 88; background of, 35–36; Ban meetings with, 298, 306; Blunk and, 303; China and, 51; genocide justice as political tool for, 36, 337–338; Group of Experts report and, 57–58; Internal Rules negotiations and, 195, 211, 218; international criminal tribunal requested by, 36, 40, 43, 46, 50–51, 67, 338; Introductory Submissions and, 296; judicial selection and, 156–157, 162; KasperAnsermet and, 306; Kerry and, 61, 88–89, 93; Khieu Samphan amnesty offer from, 31, 338; Khmer Rouge defectors meeting with, 53–54; Khmer Rouge Tribunal and, 136–137, 264, 298; on Khmer Rouge tribunals, 54–57, 60; national reconciliation and, 36, 43, 47, 54, 73, 344, 354; Nuon Chea defense

456 INDEX

Hun Sen (continued) team requests to interview, 266; Nuon Chea legal team accusations against, 261, 266–267, 272–273, 275; at Paris peace conference, 35–36, 40; Raken affair and, 135–136; Ratha letter and, 231; Sam Rainsy allegations against, 313; on scope of investigations, 296, 325, 344; Sihanouk UN meeting offer and, 232; supermajority proposal and, 76–77; tribunal funding and, 170–174, 318; tribunal law revision offer by, 108; tribunal negotiations and, 64, 67, 72–77, 80–83, 87, 107; tribunal venue search and, 146–147; on Truth and Reconciliation Commission, 56; UN-Cambodia tribunal agreement ratification sought by, 119–120; on UN tribunal negotiation withdrawal, 105–106; You Bunleng appointment and, 230–231 Hunt, David, 160 Huot Vuthy, 268 Ianuzzi, Andrew, 262–263 IBA. See International Bar Association ICC. See International Criminal Court ICJ. See International Court of Justice ICTR. See International Criminal Tribunal for Rwanda ICTY. See International Tribunal for the Former Yugoslavia ideology: classical legalism as, 62; instrumental legalism as, 18, 23; legalism and, 4, 6, 8, 355 Ieng Sary, 46, 81, 93, 101, 126, 167, 188; arrest of, 234–235; background of, 29, 199; Case 002 investigation of, 185, 234, 255; death of, 277; defection of, 44, 338; defense lawyers for, 167, 242, 263–264, 267–268, 274–277, 323; Introductory Submission and, 222, 236; investigative requests from legal team of, 256; pardon of, 44, 55, 276; PRT and, 21, 27–31, 145, 152, 270, 336–337; Raken affair and, 134–136; Thailand asylum proposal for, 46

Ieng Thirith, 188; arrest of, 234–235; background of, 199; Case 002 designation for, 234; defense lawyers for, 242; detention of, 272; Introductory Submission and, 222; mental health of, 271–272; motions by defense team of, 255, 268; at Pre-Trial Chamber hearings, 271 Im Chaem, 294, 323, 325, 327–328; Closing Order on, 329 IMT. See International Military Tribunal information security, 164, 220 Inoue, Susumu, 157 In Sopheap, 53 Institute for International Criminal Investigation, 167 instrumental legalism, 175–176, 183, 290, 335, 344–345; in Cambodia, 18, 22–23, 62, 339–340, 352–354; in China, 14; defined, 7–8, 336; in Eastern Europe, 13; KRT and, 341, 343; politics and, 337, 342; PRT and, 336–337; rupture strategy and, 342; in Vietnam, 16; Vyshinskyism as, 12; You Bunleng and, 343 Internal Rules, 236, 250, 341; adoption of, 214–215; appeals of Closing Orders in, 202–204; decision to create, 190–191; final negotiations for, 215–219; glossary for, 215; Introductory Submission work and, 220; plenary sessions on, 193–196, 214–218; publication of, 219; Rule 34, 259, 264–265; Rule 35, 267, 301, 310; Rule 63.6, 215–216; Rule 66.1, 299; Rule 66 Notifications, 247, 299, 328, 330–331, 333; Rule 72, 311; Rule 77(13), 332; Rule 89, 251 International Bar Association (IBA), 195, 211 International Conference on Striving for Justice, 42 International Court of Justice (ICJ), 33–35, 43, 87, 128 International Criminal Court (ICC), 43, 56, 103, 128, 152, 160, 187, 190, 228, 241–242

457 INDEX

International Criminal Tribunal for Rwanda (ICTR), 76, 127, 159, 161, 241 International Criminal Tribunal for Yugoslavia (ICTY), 76, 107, 127, 131, 145, 160, 242, 259, 322 International Federation for Human Rights (FIDH), 6, 318 international justice, 48, 127; mixed concept for, 65; OLA tribunal proposal and standards of, 66, 83 International Military Tribunal (IMT), 4, 6, 344–345, 352 International NGO Working Group, 146 International Seminar on the Genocide Phenomenon and Prevention of Their Return, 35 international standards, 63, 65–66, 68, 70–71, 80, 112–113, 116, 118–119, 154, 168, 177, 300; Annan skeptical of Cambodia’s compliance with, 59, 83, 99, 105, 107, 109–110; Hun Sen reassurances about, 60, 142; Internal Rules and, 192, 217, 342 international tribunals: funding of, 110, 118; negotiations to create, 8, 335; personnel overhead fees, 131 Introductory Submissions, 178, 290–291, 334; first, 218–225, 234, 240; second and third, 293, 296; second set of suspects and, 291, 294–297 In Van Vibol, 157 investigating judges, 81, 167, 226–227, 247–248, 256, 308; Cambodian government rejection of, 306–310; defense attempts to disqualify, 264–265, 268–269; dueling Closing Orders and, 331–334; selection of, 155–156, 158–161 investigators, 184–185, 187; Cambodian government challenges to, 192, 194, 205–206, 219–220; challenge to Blunk by, 301–303 Jackson, Robert H., 6–7 Jacquin, Martine, 253 Japan: judicial selection responses, 157; PRT and, 28; tribunal budget and,

130–132, 140; tribunal funding and, 139–141, 172–173, 317–319; tribunal negotiations by, 60, 80–82, 106, 110, 112, 114, 117, 213, 271, 340; tsunami impact on funding from, 313 Jarvis, Helen, 125, 142, 146, 148, 154, 159, 366n13, 373n23; on OSJI allegations, 208; on rules debate, 210, 213; on tribunal funding, 133, 171, 173 Jayasinghe, Chandra Nihal, 161, 178–179, 255, 277 Joint Criminal Enterprise (JCE), 223, 248, 254, 280–281, 287; defined, 404n351 Jones, John, 323 Jorda, Claude, 160 judges: in early Soviet Union, 11; legalism and, 6; recusal and disqualification of, 259–260, 264, 268. See also Office of Co-Investigating Judges; specific judges and courts judicial independence, 11, 115, 118–119, 269, 347 judicial police, 69, 167–168, 185–186, 215, 325–326 judicial selection, 167; Cambodian jurists, 150–157; diplomatic community responses to, 157; international jurists, 157–158, 160–161, 165 judiciary: patronage and, 150; Visoth on, 150–151 Kaing Guek Eav, “Duch,” 63, 98, 135–136, 157, 181, 351; authentication of documents by, 237; background of, 182; Case 001 designation for, 234, 236–238; charging of, 182–183, 240; at Choeung Ek, 237–238; Closing Order in investigation of, 239; defense lawyers for, 241–242; detention of, 183, 342; dispute over custody of, 178, 181–183, 216–217, 341–342; Final Submission for, 240, 248; indictment of, 248; Introductory Submission and, 222; jurisdiction question in trial of, 250–251; KRT arrest of, 227–228; military prosecutor

458 INDEX

Kaing Guek Eav (continued) indictments for, 72, 182–183; Royal Government arrest of, 61, 182; trial of, 247–255; at Tuol Sleng, 238; verdict for, 254–255 Kambol military base, 140, 145, 147 Kampong Chhnang Airport site, 283, 285 Kampong Som Autonomous Sector, 331 Kanharith, Khieu, 188, 230, 232, 263–264, 266, 268, 272, 290, 303, 310 Karnavas, Michael, 263, 265, 268; Ieng Sary and, 242, 275–277; Meas Muth and, 323; on Sary appeal applications, 277 Karopkin, Martin, 158, 161 Kar Savuth, 250–254 Kasper-Ansermet, Laurent, 304–312, 322, 324, 327; classical legalism and, 343 Kazakhstan, 13, 21, 150 Keat Chhon, 124, 272 Kem Sokha, 313 Keo Chanda, 30, 336 Keo Thyvuth, 262 Ke Pauk, 101, 200 Kerry, John, 61, 64, 88–90, 93, 339 Khan, Karim, 252–253 Khan Soeurn, 53 Khieu Sameth, 230–231 Khieu Samphan, 31, 36, 51, 53–55, 58, 101, 126, 181, 188; amnesty offer to, 338; appeals by, 281–282; arrest of, 234–236; background of, 199–200; Case 002/01 closing arguments by, 278–279; Case 002/01 verdicts against, 279–280, 282; Case 002/02 boycott by lawyers for, 283–284; Case 002/02 closing arguments by, 286–288; Case 002/02 prosecution of, 185, 234, 286; Case 002/02 verdict against, 288; defense lawyers for, 242–243, 264, 277–278, 286–287; Introductory Submission and, 221–222; judicial investigations and, 255; Raken affair and, 134–136, 338; Vergès defense of, 242–247 Khieu San, 169

Khieu Sopheak, 326 Khmer language: Khmer Rouge use of, 257–258; tribunal law drafts in, 101 Khmer Rouge, 10; Cambodia taken over by, 1; collapse of, 41, 54; criminality scope under, 184, 196; death toll studies of, 258–259, 396n158; defections from, 41, 44, 53–54; Documentation Center of Cambodia opposed by, 42; documents created during regime of, 28, 32, 237, 257–258; early accountability efforts for, 27–30, 32–34, 49–51, 61; educated people killed by, 18; exile negotiations for leadership of, 46, 51; internal coup, 48; leadership in exile, 31–32; leadership of, 29, 47, 181–182, 199–200, 222, 294; legislation banning, 41; organization of, 197–198; overthrow of, 25–26; at peace conferences, 34–37; People’s Revolutionary Tribunal and, 27–30; personal jurisdiction and, 291; Pol Pot jungle trial, 47; propaganda by, 41; prosecution of leadership, 197, 199–200, 222, 294; Standing Committee of, 10, 29, 181–182, 197, 199–200, 237, 252, 258, 291; trial preparations by leaders of, 101, 126–127, 187–188; Vietnam blamed by, 273–274, 278–279; Vietnamese Communist Party and, 2 Khmer Rouge Prosecution and Exclusion Act, 39 Khmer Rouge Tribunal (KRT), 2, 21, 123, 337–340; aftermath, 344–345; Annan reports on, 124, 127, 165; Annan reservations about, 89, 104–105, 116, 124; archives of, 345–348; budget issues, 127, 132–133, 313–322; Cambodian domestic politics and, 43–44, 54–56, 121–123, 139–140, 171–172, 312–313; conditionality of funding for, 315; criticisms of, 344–345; Defense Support Section, 193–195, 201, 207, 213, 281, 284, 314, 323; draft UN resolution for, 116–117; establishing rules of operation for,

459 INDEX

189–196; financial contributions, 320–321; first introductory submission, 219–225; funding of, 118, 124, 127–129, 139–143, 170–174; hybrid approach of, 227; impact measurement, 350–351; inauguration of offices for, 148; indictment threshold, 198; initial judicial conference, 177–183; Internal Rules plenary sessions, 193–196, 214–218; judges on part-time status, 317; judicial independence of, 118–119; judicial police and, 69, 167–168, 185–186, 215, 325–326; jurisdiction acquisition by, 179–181; launch of, 176–177; legacy issues and, 345–352; legal procedure and, 178–180; operations, 341–344; organization of, 189; origin of formal name for, 77; personal jurisdiction and, 197–198, 222, 250, 291; planning for, 125; political goals of, 201–202; public access to materials from, 348; rule-making phase, 189–196, 200–214, 341–342; Rules Committee, 191–193, 200; Rules Review Committee, 200–214; second suspect set, 290; Security Commission, 146, 168, 185–186, 326; staffing, 148–162; staffing reductions, 314, 317; UN role in negotiations for, 45–48, 51–54, 65–72, 77–91, 94–95, 99, 104–120; U.S. policy toward, 39–40, 48–51, 64–65, 75–77, 102–103, 119; venue for, 144–148. See also Extraordinary Chambers in the Courts of Cambodia; Internal Rules; Office of Co-Investigating Judges; Office of Co-Prosecutors; Pre-Trial Chamber; Supreme Court Chamber; Trial Chamber; UNCambodia tribunal agreement Khmer Rouge Tribunal law, 93; amendments to, 137–138; Corell criticisms of, 95, 104, 113; drafts of, 64, 68–72, 75, 79, 93; international tribunal negotiations and, 74, 77–81, 85–91, 114; promulgation of, 98–100

Khmer Rouge Tribunal Task Force. See Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders Khrushchev, Nikita, 12 Kidess, Theo, 174 Kiernan, Ben, 41 Kinetz, Erika, 293 Kirby, Michael, 42 Kirchheimer, Otto, 4 Kiromiya, Takayoshi, 318 Kith Meng, 171 Klonoweicka-Milart, Agnieszka, 161, 255, 277; Rules Committee and, 191–192; Rules Review Committee and, 201 Knaul de Albuquerque e Silva, Gabriela Carina, 269 Kong Sam Ol, 232–233 Kong Sam Onn, 287 Kong Srim, 193–194, 200, 211–212, 214, 281 Koppe, Victor, 242, 260, 265, 275, 278–279, 287 Kor Bun Heng, 53 Koropkin, Martin, 319 Koumjian, Nicholas, 158, 286–287, 328–331 Kou Roun, 10 Kraing Ta Chan Security Office, 120, 283, 285 Kranh, Tony, 160, 366n13 KRT. See Khmer Rouge Tribunal Ky Tech, 194–195, 213; foreign defense lawyers and, 201–204; Rules Review Committee and, 201–203, 209, 212–213 Lahuis, Katinka, 161, 178, 264, 302 Lallah, Rajsoomer, 52, 62 Lao Mong Hay, 136 Lav Chan Chhay, 126 Laverne, Jean-Marc, 161 law: class warfare and, 17; as ideological enterprise, 335; politics and, 3, 5, 7, 14, 335–336, 353; rule by, 23; rule of, 5, 10, 15, 23, 39, 76, 341, 345–346

460 INDEX

Law on Criminal Procedure (Cambodia), 20, 22, 177 Law on Temporary Detention Period (Cambodia), 182 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (Cambodia), 93, 95, 97, 101, 105, 108, 137–138 Law on the Outlawing of the Democratic Kampuchea Group (Cambodia), 41, 44, 58, 61, 134–136, 181–182, 338 Lee, Michelle, 148, 156, 159–160, 163–164; appointment of, 159–160; Rules Review Committee and, 209; Sihanouk meeting offer and, 232–233; You Bunleng Appeals Court appointment and, 229 Leekpai, Chuan, 51 Legacy Advisory Group, 346 Legacy Secretariat, 346 Legacy Working Group, 346 Legal Documentation Center, 348 legalism, 4–5; classical, 6–8, 62, 76, 79, 139, 175–176, 183, 231, 290, 297, 335–337, 339–340, 342–345, 347, 352–353, 355; ideology and, 4, 6, 8, 335; instrumental, 7–8, 12–14, 16, 18, 22–23, 62, 175–176, 183, 290, 335–337, 339–345, 352–354; judges and, 6; KRT creation and, 337–340; KRT operations and, 341–344; PRT and, 336–337; strategic, 7–8, 62, 76, 139, 335–336, 339–340, 343–345, 352, 355 legal professionals, 10, 149–150 legal training, 18–21, 150, 156, 166–167, 187, 229 Lemonde, Marcel, 161, 178–181, 185, 198, 214, 238, 329; on bar association fees, 210–211; Cases 003 and 004 and, 296–298, 342; classical legalism and, 297; disqualification attempts against, 264–265; on draft rules, 190–191; Duch custody and, 228; Internal Rules and, 342; Introductory

Submission presented to, 224, 296–298; Nuon Chea defense team and, 264–265, 267; resignation of, 297; Rules Committee and, 191–192, 194; on rules of procedure, 190; at Rules Review Committee meetings, 202, 207, 210–211, 214; rupture strategy against, 264 Lenin, Vladimir, 11; instrumental legalism and, 7; Khmer translations of works by, 20; rupture strategy and, 342 Leuprecht, Peter, 106 Lon Nol, 10, 37, 67, 157, 285, 353 Lubanga case, 228 Lysak, Dale, 285, 287 Ly Vuoch Leng, 151, 155, 229–230 Machimura, Nobutaka, 172–173 Maguire, Peter, 4, 7 Mak Ben, 53 Male captus, bene detentus principle, 228 Mam Luch, 323 Mao Chandara, 326 Mao Zedong, 14–15 Marchi-Uhel, Catherine, 268 mass grave-mapping project, 42 mass killing: Nuon Chea denying role in, 101; victim numbers determination in, 396n158; Vietnam blamed for, 288 Mat Ly, 28, 30 Mayaguez Incident, 316 McConnell, Mitch, 116, 119, 132 Meas Muth, 167, 293–294, 316, 325–328, 334, 344, 354; arrest warrant for, 325–327; background of, 293; Closing Orders for, 332; defense lawyers for, 323; faulty OCIJ investigation of, 303; Final Submissions on, 331–332; indictment of, 332 Mekong River Commission, 145 Mi Casa Hotel, 145–146 Michel, Nicolas, 147, 160, 201, 384n21 military court, 189; Duch and, 228, 255; KRT cases from, 178–183; Mok and,

461 INDEX

135, 157, 182–183. See also Phnom Penh Military Court military prosecutor, 61, 72 Milosevic, Slobodan, 128, 242 Ministry of Interior (Cambodia), 188, 194, 220, 235, 307; arrest orders and, 325–326, 343; DC-Cam and, 42; Decree Law No. 2 and, 19; judicial police and, 186 Mitnick, Philip, 145, 147 mixed tribunal model, 63–66, 102, 125, 155; initial proposals and draft laws, 61, 68–70, 339; negotiations for, 67–83; number of judges under, 71 Mohn Sophan, 92, 122 Mok (aka Ta Mok, aka Ung Choeun, aka Chhit Chhoeun), 31, 63, 65, 285, 333; background of, 181; charging of, 182; criminal case against, 58–61; death of, 182, 188–189, 200, 291; defense lawyers for, 126, 167, 178; detention of, 178, 181–182, 216; dispute over custody of, 178, 181–183; KRT and, 178; last holdouts with, 53–55; military court and, 135–136, 157, 183, 189, 341; military prosecutor indictments of, 72, 182; Pol Pot counteroffensive by, 47; Pol Pot held by, 50; Royal Government arrest of, 58, 181; Thailand asylum proposal for, 46, 51 Moneaksekar Khmer (newspaper), 153 Mong Monichariya, 167; Rules Committee and, 191 Municipal Court, 20, 261–262, 272–273 Mussomeli, Joseph, 195 Mydans, Seth, 205–206 Narodny Komissariat Vnutrennikh Del (People’s Commissariat for Internal Affairs/NKVD), 12 National Assembly, 123, 146, 231; CGP and, 42–44; draft tribunal legislation and, 78–81, 91–94, 118; elections and, 123; genocide denial law and, 313; Internal Rules and, 169, 190; Legislative Commission, 92, 137; Permanent Commission, 93, 136–137;

revised tribunal law and, 97; Standing Committee, 122; tribunal law passed by, 93–95, 98; UNCambodia tribunal agreement ratification and, 119–122, 124–125, 136–138 national crimes, 240; pretrial detention period of, 216 National Cultural Center, 130, 140, 146 National Gendarmerie, 185 National Remembrance Day, 280 Nazis, 4, 7 ne bis in idem principle, 276–277 New Economic Policy period, 11 New People, 1, 153, 292–293 Ney Thol, 156–157, 178, 181–183, 186, 260, 268 NGOs. See nongovernmental organizations Nguon Nhel, 232 Nhek Bun Chhay, 157 Nhoung Thol, 134 Nil Nonn, 21, 212, 251, 270, 273, 279, 288; Case 002/02 announcement by, 282; Duch trial conclusion and, 253–254; on KRT lessons, 347 NKVD. See Narodny Komissariat Vnutrennikh Del Noguchi, Motoo, 161, 313 nongovernmental organizations (NGOs), 8, 82, 115, 125–126, 147, 167–168, 203, 205, 231, 352; classical legalism and, 335; draft rules comments by, 169, 194; International NGO Working Group, 146; judicial selection and, 153–155; legal procedure and, 169; outreach activities by, 123, 351; transparency sought by, 154–155, 169 Norodom Ranariddh, 40, 42–43, 45–48, 92, 157, 338; Kerry and, 93; on rules of procedure, 169; tribunal law adoption and, 93–94; UN-Cambodia tribunal agreement ratification and, 122, 137 Norodom Sihamoni, 159–161; Beijing trip, 309; You Bunleng appointment by, 229

462 INDEX

Norodom Sihanouk, 37, 74, 77, 199, 309; background, 10; Ieng Sary pardon by, 44, 276; immunity of, 231–232; Nuon Chea defense team requests to interview, 266; at Paris peace conference, 35–36; tribunal law signed by, 98–99; UN meeting offer from, 232–233 “Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004” (KasperAnsermet), 311 Notice of Conclusion of Judicial Investigation, 307. See also Rule 66 Nou Tharith, 213 Ntsebeza, Dumisa, 56 Nuon Chea, 31, 51, 58, 101, 126–127, 188, 199, 353–354; arrest of, 233–234; Case 002/01 appeal, 281–282; Case 002/01 closing arguments, 278–279; Case 002/01 opening arguments by defense team, 273; Case 002/01 verdict, 279–280; Case 002/02 appeal, 288; Case 002/02 boycott by lawyers for, 283; Case 002/02 closing arguments, 286; Case 002/02 opening arguments by defense team, 283; Case 002/02 prosecution of, 286; Case 002/02 verdict, 288; Case 002 designation for, 234; CPP allegations by defense team of, 272–273; death of, 288; defense lawyers for, 242, 259–270, 278–280, 286, 312, 345; Duch and, 236; Ieng Thirith and, 272; Introductory Submission and, 221–222; investigative requests from legal team of, 256; PRT and, 337; Raken affair and, 134–136, 338; role in Khmer Rouge regime, 199, 222; rupture strategy by defense lawyers, 259–270; spoon-breaking executions and, 274–275; surrender to Hun Sen by, 54–55; Vietnam and, 29; Vietnam blamed by, 273–274, 279, 286, 288

Nuremberg trials, 4, 6, 17, 66, 352. See also International Military Tribunal O’Brien, Patricia, 298, 301, 303–304 Obuchi, Keizo, 80 Obyedinyonnoye Gosudarstvennoye Politicheskoye Uprovleniye (United State Political Administration/ OGPU), 12 OCIJ. See Office of Co-Investigating Judges OCP. See Office of Co-Prosecutors October Revolution of 1917, 13 Office 870, 258 Office of Cambodian Genocide Investigation, 39 Office of Co-Investigating Judges (OCIJ), 158, 177, 226, 243, 248; Case 002 and, 255–259, 264, 268–270, 297; Case 003 and, 296, 298–299, 331–332; Case 004 and, 296, 298–299, 329–331, 333–334; Duch charges and, 240, 248; Duch taken into custody by, 227–228; Heder and, 184, 205; Ieng Sary/Ieng Thirith arrests by, 234–235; Introductory Submission presented to, 224, 296; Khieu Samphan arrest by, 235–236; Nuon Chea arrest and, 233–234; OCP leaks and, 219; resignations of judges from, 297, 303, 310, 327, 333–334; resignations of staff from, 300–301; rupture strategy against, 263–265; “Young Jedi Knights” group in, 299–300 Office of Co-Prosecutors (OCP), 194, 390n188; Case 002 Final Submission and, 270; Duch Final Submission and, 239–240, 247–248; Introductory submissions by, 219–224, 294–296; launch of, 177, 184–189; leaks in, 219–220; open desk information security, 220; potential suspects identified by, 200; preliminary investigations by, 196–200, 219–221, 290–294; S-21 investigation impact, 348; second set of suspects

463 INDEX

investigated by, 290; statement of disagreement from, 294–295 Office of Internal Oversight Services (UN), 262 Office of the United Nations High Commissioner for Human Rights (OHCHR), 108, 346, 350 OGPU. See Obyedinyonnoye Gosudarstvennoye Politicheskoye Uprovleniye OHCHR. See Office of the United Nations High Commissioner for Human Rights OLA. See UN Office of Legal Affairs Olsen, Lars, 269, 318 Om Yen Tieng, 58, 87, 124, 136, 145, 159, 366n13; on Cambodian funding, 170–172 Open Society Justice Initiative (OSJI), 147, 154–155, 302, 319, 325, 328; corruption allegations and, 207–208, 260–261, 315; on legal procedure, 169; legal training and, 167; UN investigation demanded by, 304 OSJI. See Open Society Justice Initiative Othman, Mohamed, 166 Ouch Borith, 66, 117 Ouk Bunchhoeun, 19–20 Ouk Savuth, 262 Ozawa, Toshiro, 132 Palau, 50 pardons, 80, 82, 84, 86, 134, 346, 349; of Ieng Sary, 44, 276 Paris International Conference on Cambodia, 34, 36–37 Paris Peace Accords for Cambodia, 37, 39–40, 338 Party of Democratic Kampuchea (PDK), 36. See also Khmer Rouge patronage, 150, 340 PAVN. See People’s Army of Vietnam PDK. See Party of Democratic Kampuchea penal code of 1956, 10, 96–97, 177, 248, 331

Peng Zhen, 14–15 Pen Pichsaly, 178 People’s Army of Vietnam (PAVN), 25–26, 29, 41 People’s Assessors, 28 People’s Commissariat for Internal Affairs. See Narodny Komissariat Vnutrennikh Del people’s courts, 12 People’s Republic of China (PRC), 18, 56; Duch and, 182; Khmer Rouge prosecution proposals and, 51, 57, 64–67, 109; legal systems, 14–16; people’s courts, 14; proxy war in Cambodia and, 34; Vietnam diplomatic relations with, 37 People’s Republic of Kampuchea, 19–20 People’s Revolutionary Tribunal (PRT), 21, 27–32, 35, 44, 62, 130, 145, 226, 276, 336–337; Dith Munty and, 21, 152 people’s tribunals, 14–16 personal jurisdiction, 29, 66, 197–198, 219, 222, 250, 256, 266, 294, 312, 328–330, 332, 343; prongs of, 197, 226, 291, 353 Peschoux, Christopher, 45 Pestman, Michiel, 242, 247, 259, 265, 267–270, 273, 275, 312 Peterson, Trudy, 346 Petit, Robert, 160, 178–180, 185–186, 266, 289, 348; background of, 161; Duch charges and, 240; on Duch trial jurisdiction question, 251; on Internal Rules negotiations, 196, 218; Introductory Submissions and, 221–223; legacy issues and, 346; resignation of, 296; on rules of procedure, 190–191; second set of suspects and, 293–294; You Bunleng appointment and, 229 Phay Siphan, 269, 306 Pheaktra, Neth, 326 Phnom Kraol Security Office, 283, 285 Phnom Penh, 18; evacuation of, 1, 274, 279, 282; first post-Khmer Rouge court in, 20; memorial sculpture in, 280, 349

464 INDEX

Phnom Penh Military Court (Cambodia), 135, 156–157, 181–183, 188–189, 341; Duch and, 183, 216–217, 228–229, 255; pretrial detention and, 216–217 Pickering, Thomas, 74 Pok Pon, 189 politics, 3, 14, 43, 60, 172, 345; CBA as tool of, 211; in classical legalism, 5, 8, 335, 353; in instrumental legalism, 7–8, 336, 341–342, 353; in strategic legalism, 7–8, 336; symbolic, 85 Pol Pot, 21, 36, 39, 43, 53, 199, 257, 338–339, 353; attack on Vietnam by, 25–26; death of, 50, 181; on ethnic Vietnamese in Cambodia, 285; followers executed by, 47, 200; kangaroo court trial of, 47; Khmer Rouge cadres fleeing purges by, 27; Palau agreement to hold, 50; PRT and, 27–31, 145, 152, 336–337; in Thailand, 31–32; Thailand asylum proposal for, 46; United States and, 37–38, 48–50, 339 Pottie, Donica, 212 Powell, Colin, 103, 116, 132 Pracheachon party, 10 Prak Kimsan, 156, 215, 260, 268, 306–308, 310; instrumental legalism and, 343; Rules Committee and, 191 Prak Yut, 284 PRC. See People’s Republic of China preliminary investigations, 178–181, 184, 196–200, 219–224, 290–295, 341; confidentiality of, 219–220 Pre-Trial Chamber, 202–204, 207, 216, 302; Ao An and, 324, 331; Case 002 and, 256, 264–265, 267–269; Cayley and, 300; Co-Prosecutors’ dispute in, 295–296; Duch charges and, 236, 240, 248; Ieng Sary ne bis issue and, 276–277; Im Chaem and, 329–330; judges in, 155–156, 158, 161; Kasper-Ansermet and, 306–308, 311, 343; Khieu Samphan appeals and, 243–246; Meas Muth and, 302, 323, 327, 332, 354; Nuon Chea appeals

to, 259–260, 263; Yim Tith and, 333–334 pretrial detention, 181–183, 342, 383n6, 383n19; debates over, 216–218; limits of, 215–216 Principal Donors Group, 297, 317, 319, 322 PRIO Research Institute, 187 procurators, 11 Prosper, Pierre-Richard, 103, 154 PRT. See People’s Revolutionary Tribunal public funding, 171–172 Quigley, John, 28 Raken affair, 133–136 Rapoza, Philip, 158 Ratner, Steven, 52 Ray, Charles, 132 Reach Sambath, 244 realism, 7 realpolitik, 337 Recent History of Cambodia and My Successive Positions, The (Samphan), 126–127 Reno, Janet, 49 reparations, 280–281, 346, 349–350 residual mechanism, 297, 349 retributive justice, 32, 39, 41, 46, 58, 72, 111, 344 retroactivity, 70–72 Revolutionary Army of Kampuchea (RAK), 286, 331–332; General Staff, 258, 291, 294, 332, 390n188 Revolutionary Flag (journal), 237, 258, 285 Revolutionary Youth (journal), 237, 258 RGC. See Royal Government of Cambodia Robb, Charles, 39–40 Robert’s Rules of Order, 5 ROE/ROP. See Rules of Evidence and Rules of Procedure Romanov dynasty, 10 Root, Elihu, 7 Rosandhaug, Knut, 263, 274, 297

465 INDEX

Rosenstock, Bob, 75, 78 Ros Samay, 20 Roux, François, 238, 241, 244–246, 250–252, 254 Royal Government of Cambodia (RGC), 31, 41–44, 55, 59–60; tribunal task force appointed by, 67; UN negotiations with, 45–47, 67–72, 76–91, 113–117, 163–164 Royal School of the Magistracy, 166, 168 RPE. See Rules of Procedure and Evidence Rule 34 (KRT Internal Rules), 259, 264–265 Rule 35 (KRT Internal Rules), 267, 301, 310 Rule 63.6 (KRT Internal Rules), 215–216 Rule 66.1 (KRT Internal Rules), 299 Rule 66 Notifications (KRT Internal Rules), 299, 328, 330–331, 333; Case 001, 247 Rule 72 (KRT Internal Rules), 311 Rule 77(13) (KRT Internal Rules), 332 Rule 89 (KRT Internal Rules), 251 rule by law, 23 rule of law, 76, 341 Rules Committee, 191–193, 200 Rules of Evidence and Rules of Procedure (ROE/ROP), 125, 162, 166, 168–169, 189 Rules of Procedure and Evidence (RPE), 152, 166–169 Rules Review Committee, 200–214, 220, 342 Ruos Nhim, 200 rupture strategy, 241–247, 259–270, 275, 281, 342 Russia, 10–11; Khmer Rouge tribunal proposals and, 65–66, 74–75, 78, 82, 117 Russian revolution, 8, 10–11 Ryan, Heather, 167, 328 S-21 Security Office, 18, 189, 199, 234, 283, 285, 313, 348; Case 001 and, 182, 216, 222, 236–238, 248, 251; documents created by, 237, 258; interviews with staff of, 237; OCP investigation impact, 348

Sach, Warren, 131, 141–142, 147 safety and security agreements, 144, 162, 164 Said, Mohammed, 140, 147 Sam Rainsy, 312–313 Sam Rainsy Party, 123, 171–172 Sann Lorn, 285 Sao Phim, 200 Sar Kheng, 42, 235 Sar Sovan, 244 SCC. See Supreme Court Chamber Scheffer, David, 95, 102–103, 142, 326; Annan and, 90; Case 002 and, 271; Chapter VII tribunals and, 51, 64; Hammarberg and, 64; KasperAnsermet and, 309–310; Khmer Rouge accountability sought by, 8–51, 59, 338–339; KRT funding and, 314, 317–319; mixed tribunals and, 64–65; rule-making and, 341; Sok An meetings with, 74, 77, 87, 137, 203–205, 309–310, 326; strategic legalism, 339–341; tribunal negotiations and, 74–82, 86–90 SCM. See Supreme Council of the Magistracy SCSL. See Special Court for Sierra Leone Sean Visoth, 164, 208, 341–342, 366n13; on Cambodia judiciary, 150–151, 340; on Cambodian funding, 170; Case 002 appeals and, 263–264; corruption allegations and, 208, 262–264; director of administration appointment of, 159–160; on Heder, 205–206; on Japan funding intentions, 140; judicial appointments and, 157, 166; on judicial salaries, 133; Mydans interview with, 205–206; on OCP office security, 220; pretrial detention debates and, 217; on prosecution list, 206; rule-making and, 341; Rules Review Committee and, 209; at Scheffer-Sok An meeting, 203; on tribunal budget, 132–133; on tribunal law, 138; on tribunal venue, 146, 148; You Bunleng appointment and, 229–230

466 INDEX

Second Indochina War, 17 Secretariat of the Task Force (STF), staffing and, 143, 148–149, 151, 168, 170 Security Commission, 146, 168, 185–186, 326 Senate (Cambodia): revised tribunal law and, 98; tribunal law passed by, 95–96 Senate Appropriations Committee (United States), 116, 315 Seng, Theary, 195, 211, 350 Seng Bunkheang, Case 002/02 and, 285 Seng Kuy, 284 Serey Ratha Suon, 231–232 Shklar, Judith, 4–5 show trials, 11, 288, 345 Sidel, Mark, 18 Simpson, Gerry, 345 Sin Rith, 200 Sin Song, 18 Sisowath Thomico, 233 site identification reports, 257 Skilbeck, Rupert, 193–194, 210, 213 Sluiter, Goran, 323 Smith, Bill, 244, 253–254; Introductory Submissions and, 296 Soderberg, Nancy, 51 Sok An, 21, 86, 100, 115, 164, 214, 271, 326; Case 002 and, 271; Cases 003 and 004 and, 293; Chea Leang and, 21, 239–240; Corell letters with, 86, 89, 95–96, 98, 101–104; on Defense Support Section, 201; draft agreement signing and, 119–120; draft tribunal legislation and, 91–92; on final tribunal negotiations, 91, 115; on grilling the elephant, 239–241, 322; on Internal Rules negotiations, 190, 201, 217–218; judicial selection and, 155–156, 162; Kasper-Ansermet and, 306, 310; on KRT finance issues, 142, 317; at KRT launch, 177; Legislative Commission and, 91–93, 137; on number of prosecutions, 198; Nuon Chea legal team letter to, 261; on OSJI allegations, 208; pretrial detention debates and, 217; on rules of procedure, 169; Scheffer meetings

with, 77, 87, 137, 203–205, 309–310, 326; Senate and, 95; staffing and, 159–160, 162, 317; Taksoe-Jensen meetings with, 263; third-party dispute resolution mechanism proposals and, 86–88; tribunal funding and, 142; tribunal law defense by, 105–106; on tribunal law revisions, 97; tribunal law text shared by, 101; tribunal negotiations and, 110–111; tribunal task force led by, 67–69, 71–72, 74, 77–78, 81, 84, 91, 112; UN-Cambodia tribunal agreement ratification and, 137; at UNCambodia tribunal agreement signing, 120–121; at UN-Royal Government negotiations, 113–114; You Bunleng appointment and, 230 Sok Chea, 244 Sokimex Company, 171 Sok Kalyan, 155, 262 Sok Kong, 171 Sok Sam Oeun, 21, 126 Solarz, Steven, 39 So Mosseny, 323 Son Arun, 259, 281 Son Sen, 47, 200 Son Soubert, 230 Sous Met, 293–294, 303, 323, 354 South Africa, Truth and Reconciliation Commission in, 56 So Vat, 134–135 Soviet Union. See Union of Soviet Socialist Republics special chamber proposal, 74–77, 88–89, 339 Special Court for Sierra Leone (SCSL), 101, 128, 145, 161, 169, 190, 242 Special Criminal Court in the Central African Republic, 421n9 Special Military Court (Cambodia), 10 Special Panels for Serious Crime in East Timor, 161, 298 Special Security Commission, 12 spoons, breaking, 274–275 staffing, 148–162, 170, 184, 201; estimates for, 125, 132, 148–149; legal

467 INDEX

professional shortages and, 149–150; political considerations in, 150–151, 153; reductions in, 301, 305, 314, 317, 319, 331–332 Stalin, Joseph, 11–12 Stanton, Gregory, 32–33, 41, 139; draft procedures and regulations by, 169–170, 190–191; question of genocide and, 289; Rules Committee and, 191 State Council for Judicial System Reform, 151 State Department (United States), 116, 157; CGP and, 41; Khmer Rouge legislation and, 39–40; Office of Cambodian Genocide Investigations, 39; Policy Planning Staff, 49; Pol Pot accountability and, 37–38, 48–49; tribunal financing and, 315 Stephen, Ninian, 52 Stevens, Hope R., 28, 337 STF. See Secretariat of the Task Force Stocchi, Paolo Pastore, 301 Storella, Mark, 157 strategic legalism, 62, 76, 139, 335, 344, 352; Blunk and, 343; defined, 7–8, 336; United States and, 339–340 Studzinsky, Silke, 253 Subedi, Surya, 269 subject matter jurisdiction, 29, 70, 135, 162, 166, 256, 316 supermajority voting rule, 295–296, 307, 327, 332, 340; national efforts to reverse, 202–204; proposals for, 75–78, 81–82, 84–85, 88–89; strategic legalism and, 339, 343 Supplemental Agreements between UN and Cambodia, 144, 163–165 Supplementary Submissions, 293–295 Supreme Council of the Magistracy (SCM), 21; Harmon and, 322; international jurist appointment and, 158, 160–161, 165; judicial selection and, 151, 155–156, 160–161; Kasper-Ansermet and, 305–306, 308–309; You Bunleng and, 230–231, 310, 343

Supreme Court Chamber (SCC), 158, 161–162, 193, 271, 276–277, 287; Case 002/01 appeals and, 274, 281–282; Case 002 severance and, 282–283; Duch appeal and, 255, 342; Ieng Thirith and, 272; part-time status for judges of, 314 Switzerland, judicial selection and, 158 Tabeau, Ewa, 259 Takahashi, Fumiaki, 140, 173, 213 Taksoe-Jensen, Peter, 263 Tan Senarong, 21 Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders, 67–70, 78–79, 84–87, 91, 105, 112–115, 122–125, 132, 137–140, 162, 172, 190; diplomatic missions meeting with, 124; judicial candidates leaked by, 151, 153, 155; UNAKRT and, 125; venue search and, 145–147 Tep Khunnal, 53 Thailand, 41; fighting with forces of, 294; international criminal tribunal proposals and, 51; Khmer Rouge leadership exile in, 31, 34, 46, 51; Meas Muth killing nationals of, 332; Pol Pot arrest plan and, 50 Theory of Legal Evidence in Soviet Law, The (Vyshinsky), 12 They Kheam, 259 Thiounn Thioeunn, 53 Third Committee (UN), 117–119 Thong Ol, 155–156 Thou Mony, 178, 212 Thun Saray, 139, 350 totalitarianism, 2, 8, 12, 336 training, 21, 123, 125, 144, 150, 156, 162, 166–169, 185–187, 195, 345, 347 Tram Kak Cooperatives, 283, 285 translations, 148, 224, 243–244, 256, 332–333 transparency, 154–155, 333 Trapeang Thma Dam worksite, 98, 283, 285

468 INDEX

TRC. See Truth and Reconciliation Commission Trial Chamber (TC), 161, 312, 314, 347; Case 002/01 and, 271–281; Case 002/02 and, 282–288; Case 002 in, 269–271; classical legalism and, 342; Duch case in, 248–255; Ieng Sary pardon and, 276; SCC order for second TC panel, 271, 283 trials in absentia, 27, 30, 201, 204, 336 tribunal agreement signing, 119 tribunal funding, 79, 110, 124–125, 127–130, 241, 293, 314–322, 325; Annan and, 139–141; Australia, 139–141, 158, 317–318; Austria, 141; Belgium, 141; Cambodia, 139–140, 142–143, 170–174, 317–319; Canada, 141; Denmark, 141; European Commission, 141; France, 139–141, 158; Germany, 141, 158, 351; Japan, 139–141, 313–314; Luxemburg, 141; Netherlands, 141; New Zealand, 141; Norway, 141; Sok An and, 142–143; Sweden, 141; Switzerland, 158; United States, 132, 140, 158, 315–316, 351; United Kingdom, 141, 158 tribunal negotiations, 8, 110–111; Aide Memoire in, 72–73, 75; co-prosecutors and co-investigating judges in, 81; draft laws, 68–72, 77–87, 90–93; first UN-Cambodia round, 67–83; genocide definitions and, 70–71; initial proposals, 68–69; retroactivity in, 70–71; second UN-Cambodia round, 83–90; sovereignty and, 63, 67–68, 71, 73–75, 89, 194, 341; special chamber proposal and, 74–77, 88–89, 339; supermajority proposals, 76–77, 81, 84–85, 88, 339; third-party dispute resolution mechanism proposal, 86–88; third UN-Cambodia round, 90–94 Tribunal Task Force. See Task Force for Cooperation with Foreign Legal Experts and Preparation of the Proceedings for the Trial of Senior Khmer Rouge Leaders Troikas, 12

Trump, Donald, 3 Truth and Reconciliation Commission (TRC), 56 Tuol Sleng Museum of Genocide, 32, 61, 182, 237–238, 248, 349 Tuol Sleng Prison, 49 Tutu, Desmond, 56, 58 Twining, Charles, 40 Twitter, 304–305, 308 Uk Phourik, 212 UN. See United Nations UNAKRT. See United Nations Assistance to the Khmer Rouge Tribunal UN-Cambodia tribunal agreement, 144; Article 11, on amnesty and pardons, 84, 86, 346, 349; Article 14, on premises of the court, 163; Article 15, on Cambodian funding, 170, 315, 414n186; Article 21, on foreign defense counsel, 202–204; Article 28, “Withdrawal of Cooperation,” 116, 119, 203, 309; ratification of, 136–138; signing of, 119–120 UN Center for Human Rights, 41, 45, 52; Hun Sen proposal for changing, 72 UNDP. See United Nations Development Programme UN General Assembly, 47, 52, 59; draft agreement and, 116–117; Third Committee, 117–119; tribunal law negotiations and, 108–115; tribunal resolution in, 111–113 Ung Huot, international criminal tribunal requested by, 50 UN Group of Experts, 52–54, 57–59, 338 UN Human Rights Commission, 60 Union of Soviet Socialist Republics (USSR), 7–8, 10, 18; Cambodia legal framework and, 23; collapse of, 34–35; Germany occupation by, 13; instrumental legalism and, 8, 12, 336, 352; legal system in, 12–13; legal training in, 21; New Economic Policy period, 11; PRT and, 28; War Communism period, 11, 19

469 INDEX

United Nations (UN), 19, 22, 25, 37, 62, 85–86; Cambodia frustrating, 89, 99; Cambodia resolution, 45, 47–48; draft Memorandum of Understanding, 87–88, 92, 115; international criminal tribunal proposals and, 51–54; judicial selection and, 158; Office of Internal Oversight Services, 262; Royal Government negotiations with, 63–99, 113–116; tribunal law and, 69, 95, 97, 104–105, 108; tribunal negotiations withdrawal, 104–106; tribunal working group, 67–72 United Nations Assistance to the Khmer Rouge Tribunal (UNAKRT), 123–125, 143; budget preparations by, 129–132; creation of, 123; Defense Support Section and, 201; GIS budget complaints to, 131; hiring freeze in, 314; implementation planning by, 129–130; staffing and, 148–149, 159–162; venue search by, 144–147 United Nations Development Programme (UNDP), 166–167, 169 United State Political Administration. See Obyedinyonnoye Gosudarstvennoye Politicheskoye Uprovleniye United States, 56–57, 62, 66; Agency for International Development, 122–123; anti-Khmer Rouge legislation in, 3, 39–40, 337; Chapter VII tribunals and, 49, 51, 61, 64, 75, 338; International Criminal Court criticisms of, 103; judicial selection and, 154; judicial selection responses, 157; Khmer Rouge and, 37–38, 48, 59; OLA and, 102–103; outreach activities funded by, 351; Pol Pot and, 48–50; special chamber proposal and, 74–77, 89, 339; strategic legalism and, 7, 62, 340; tribunal financing and, 132, 140, 158, 315–316, 351; tribunal negotiations and, 75–78, 80–82, 102–103, 110–111, 114; UN Security Council and, 49, 51, 61, 64–66, 75, 338

UN Office of Legal Affairs (OLA), 6, 75, 78–79, 107, 111, 335, 339; classical legalism and, 6, 335, 339, 352–353; Corell and, 84, 104, 113, 128; on draft law, 78–80; Special Court for Sierra Leone and, 101; tribunal law and, 94–95, 102; tribunal proposal from, 65–72; UN-Cambodia Agreement and, 142; United States and, 76, 102–103 UN Security Council, 25, 57, 59, 172; Chapter VII tribunals and, 49, 51, 61, 64–65, 338; OLA tribunal proposal and, 66–67; tribunal law negotiations and, 83, 108–110; United States and, 75 UN Special Rapporteur on Genocide, 38 UN Special Representative for Human Rights in Cambodia, 42, 44–45, 64, 72, 77, 106 UNTAC Criminal Code, 23, 177 USSR. See Union of Soviet Socialist Republics Vann Nath, 238 Van Rith, 223, 294, 408n16; Introductory Submission and, 222 Vergès, Jacques, 126, 236, 242–247; rupture strategy and, 243, 246–247, 270, 342 Victim Support Section, 205, 214, 280, 314 Vieira de Mello, Sergio, 108 Vietnam, 41, 100–101, 246; Cambodia attack on, 25–26; Cambodia invasion by, 26–27; Cambodia withdrawal by, 34; China diplomatic relations with, 37; Khmer Rouge blaming genocide on, 270, 273–274, 278–279, 286; legal systems in, 16–18; People’s Revolutionary Tribunal and, 27–29, 336 Vietnamese Communist Party, 2, 17 Vietnamese people, in Cambodia, genocide against, 1, 184, 196, 257, 283, 284–286, 288–289, 291, 332 Vietnam Veterans Against the War, 61 Voice of Khmer Youth (newspaper), 208

470 INDEX

Vorn Vet, 200 Vyshinsky, Andrei, 11–12, 18, 336–337 War Communism period, 11 war crimes, 228; in Case 001 (Duch), 183; in Case 002/002, 288; in Case 003 (Meas Muth), 328, 332; Group of Experts and, 53; Mok and, 182; Ney Thol and, 157; North Vietnam and, 17; preliminary investigations of, 184, 196; Scheffer and, 48 war nexus requirement, 71 Wat Au Trakuon Security Office, 284 weakest link theory, 343 Wiedemann, Kent, 76, 78, 81, 84, 88–89, 92, 102–103, 339 Wilde d’Estmael, Vincent de, 245 Williamson, Clint, 298 witness tampering charges, 303 Worden, Scott, 168 World Conference on Religion and Peace, Khmer Program, 32 World Trade Organization, 137 World Vision, 182 World War II, Nuremberg trials after, 4, 6, 8, 17, 66, 344, 352. See also International Military Tribunal Yale University, Cambodian Genocide Program (CGP) at, 41–44, 337–338

Yam Yeth, 134–135 Yar Narin, 155 Yet Chakriya, 157, 239, 262, 308 Yim Tith (aka Ta Tith), 294, 323, 327, 333–334, 344 Yongchaiyuth, Chavalit, 46 You Bunleng, 167–268; on acquiring jurisdiction, 178–181; Ao An charges dismissed by, 331; appeals court appointment of, 229–231; Cases 003 and 004 and, 296–297, 323, 343–344; Chea Leang and, 240–241; defense attempt to disqualify, 268; Duch custody and, 228; Im Chaem case and, 328; instrumental legalism and, 343; investigations sought of, 303–304; Kasper-Ansermet and, 305–306, 308, 310–311; on KRT case management lessons from, 347; Meas Muth case and, 298, 332; OCP leaks and, 219; Rules Committee and, 191–192, 214; Yim Tith case and, 333–334 Young Jedi Knights, 299–300 Yun Yat, 47, 200 Yuos Por, 28, 337 Zacklin, Ralph, 65–66, 78–79, 81, 86, 160; UN working group led by, 67–72 zheng-fa system, 14