Overview by Emma Bakkum, Research Associate PILPG-NL
David Scheffer – Special Expert to Extraordinary Chamber in Courts of Cambodia
Michael Bliss – Australian Department of Foreign Affairs and Trade
The ECCC is voluntarily funded. The great recession, the tsunami in Japan and the migrant crisis in Europe have had a huge impact on the ability to allocate funds.
Main lessons that can be taken from the ECCC:
It is possible to have an internationalized national court that is close to the crime scene;
This court can function in a way to ultimately bring justice on site to the victims within society.
This event hosted by Australia and the ECCC focused on the challenges for a voluntarily funded tribunal within the international justice framework, as well as lessons that can be learned from the ECCC. David Scheffer, U.N. Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Trials, first of all shortly mentioned the four cases that occupy the docket of the ECCC, of which case 001 has been closed. Regarding case 002 he said that top perpetrators are ultimately brought to justice and that a judgment is expected next week Wednesday, November 23. Case 002 will come to an end in January. Cases 003 and 004, against four individuals, are in the final phases prior to the issue of a closing order, which will be done in 2017. Scheffer expects decisions in early 2018. Although an appeal in these cases means another three-year period of trial work, the structure of the court will change radically and 2018 will be a milestone year where the budget will come down considerably.
Secondly, the continued financial operation of the court was discussed. The ECCC is voluntarily funded. The great recession, the tsunami in Japan and the migrant crisis in Europe have had a huge impact on the ability to allocate funds. That is why Scheffer calls on the representatives of governments for support in the upcoming 15th committee vote of the UN, to receive a subvention (16.2 million) that will guarantee the financing of the staff for the year 2017. Individual contributions of governments are extremely important as well and he encouraged those at the side event that anything that can be managed for the 2017 budget will be appreciated to keep the court going.
Former ECCC judge Motoo Noguchi also underlined, among other challenges for the ECCC, the difficulty of operating a hybrid tribunal with voluntary contribution. He and Scheffer added that the trial is closely followed by the Cambodian population at large. During the Q&A session, a question was raised regarding capacity building of the ECCC. According to Scheffer, the ECCC process will have generational impact throughout the Cambodian judiciary. There will be long term impact, however the problems of Cambodia, including the national judiciary, should not be understated.
During the Q&A, former Ambassador Stephen Rapp brought up the issue of the controversy surrounding Cases 003 and 004, asking how the Court will deal with the political tensions between the UN and the Cambodian government as these cases move forward towards the close of the investigations. Scheffer replied by saying that despite various hurdles faced by these cases they do continue to move forward and that fact is key. He highlighted the problem of different viewpoints from different parts of the Cambodian government on these cases and that the Court continues to work their way through this. He furthermore stated although there is the possibility of non-arrest of the accused in these cases, should they be indicted by the Co-Investigating Judges, this is first and foremost a diplomatic issue. However, he highlighted that the Cambodian government has not resisted the investigations in these cases up to this point and that the government is aware of what is at stake should they choose to walk away from the Court at this late stage. There is also the argument that you hear that the Cambodian government could shut down the ECCC and try these cases domestically, however, it is generally accepted that this will not happen. However, it remains to be seen what will happen should these cases go to trial, especially given that the international community is perhaps growing tired. In short, the ECCC is entering a new chapter and it is difficult to predict what will become of Cases 003 and 004.
Another question asked was about the main lessons that can be taken from the ECCC. Firstly, that it is possible to have an internationalized national court that is close to the crime scene and that this court can function in a way to ultimately bring justice on site to the victims within society. This could act as an example for a novel exercise of the ICC. The ICC could pass agreements with states on the basis of the example of the UN and the ECCC that could allow for more ‘agreed complementarity’ rather than the current system that requires states to ‘show they’re doing something’ and if not, the ICC intervenes. The ICC could play a role in bringing talent and integrity into a national court system. Secondly, Scheffer mentions that in terms of trial and investigating management, he would have structured the court differently in retrospect to bring different legal systems together. Noting Scheffer’s comment on the possibility to pass agreements between states and the ICC, ambassador Stephen Rapp added that the new special penal court in the Central African Republic signed a memorandum of understanding with the ICC.