Defending before the Extraordinary Chambers in the Courts of Cambodia
An Interview with Anta Guissé
Edited by Cailan Cumming, Kate Gibson & Paul Williams
A Note on Defending Justice
This blog is part of the Defending Justice series, an initiative of the Public International Law and Policy Group (PILPG) to promote an eclectic array of voices within the field of international criminal law.
As part of our broader efforts to strengthen institutions of justice, this series seeks to create space for dialogue around the varied perspectives and concerns that shape these institutions. With that aim in mind, we interviewed a series of defense practitioners working in international criminal law and distilled their experiences and insights into a series of first-person blogs, preserving the spirit and voice of those interviews.
Editor’s Note
In this blog, defense lawyer Anta Guissé reflects on the unique dynamics of hybrid tribunals, drawing from her extensive experience at the Extraordinary Chambers in the Courts of Cambodia (ECCC). As a defense lawyer for Khieu Samphan, a former high-ranking leader of the Khmer Rouge regime, Guissé discusses the historical narratives and local context that influenced her case, as well as the advantages of conducting tribunals in situ. Her first-hand experiences highlight how the symbolic nature of the ECCC trials, the immense pressure to secure convictions, and inconsistencies in applying modes of liability can undermine the foundational principles of law and justice. Guissé is a strong advocate for the integrity of the legal process and judicial discussion, and for uncovering the judicial truth and recognizing victims regardless of the trial’s outcome. Rather than building international criminal law around the desire to convict, Guissé challenges us to let the fundamentals of the rule of law work, regardless of public opinion, moral pressure, or political interference.
Introduction
My journey into international criminal defense was somewhat serendipitous. At the time I began my career, international criminal law had not yet developed into the specialized field it is today. In those early years, many of us working in international law came into the field through our experience in human rights or domestic criminal law. My own domestic career involved intervening on behalf of both the accused and victims, an experience I now draw upon when defending the accused before international tribunals.
It was through my former employer, Raphaël Constant, who had served as defense counsel for the former Rwandan military leader Théoneste Bagosora, that I first learned about international tribunals. After leaving his office, I was hired as a legal consultant for a defense team at the International Criminal Tribunal for Rwanda (ICTR), and after working as a consultant in another case, I became a co-counsel in a third case. I subsequently joined the ECCC when my former co-counsel in my last case before ICTR (Kalimanzira v. The Prosecutor), Arthur Vercken, invited me to join the Khieu Samphan case—one of the most defining cases of my career, and the focal point of this blog.
Defending clients in the context of mass atrocities is a challenge many are not willing to take on, but is one that I have found to be worth confronting since the beginning of my career. Ultimately, presenting the position of the client is the same in any practice of law, but when dealing with crimes of mass atrocities a defense lawyer is forced to examine events from multiple perspectives and keep an open mind amongst the immense pressure to follow the commonly accepted view of history and the prevailing narratives surrounding those events. International criminal defense has not solely been a professional pursuit to me, but also a service to judicial truth focused on the responsibility of my client—a truth that can only emerge when both the defense and prosecution are fully empowered to understand and present the facts of a case in court.
What follows are some of my reflections on the complex intersections of law, politics, and justice in the work of the ECCC, and the indispensable role of the defense in upholding the integrity of the international criminal justice system. It begins with a brief overview of the Extraordinary Chambers in the Courts of Cambodia (ECCC)—its origins, structure, and the historical context that shaped it. It then turns to the distinctive challenges of defending in a hybrid, in situ tribunal including the procedural dynamics of a court with mixed legal traditions, the significance of working across legal cultures and languages, the limitations on defense, and the tensions between symbolic justice and legal fairness.
Through the lens of Khieu Samphan’s case, this blog examines how political pressures, funding constraints, time, and evolving modes of liability—particularly the use of joint criminal enterprise—shaped the trial process and strained legal integrity. Finally, it considers what, if anything, hybrid tribunals like the ECCC have contributed to the evolution of international criminal law, and what lessons that can be drawn to strengthen the international criminal justice system and the future work of international tribunals.
Extraordinary Chambers in the Courts of Cambodia (ECCC)
Cambodia’s Khmer Rouge regime, led by Pol Pot, seized power in 1975 and established the country as Democratic Kampuchea, a classless ‘agrarian utopia’ created by forcibly evacuating cities, abolishing currency, subjecting the population to intense labor under brutal conditions, and targeting perceived enemies, including intellectuals, minorities, and dissenters. This vision, influenced by both Marxist-Leninist and nationalist ideals, contributed to the policies that caused mass suffering and death. The result was catastrophic: an estimated 2 million Cambodians—or one in four people—perished due to executions, starvation, and forced labor in what became known as the Cambodian genocide. The regime collapsed in 1979 following Vietnam’s invasion.
The Extraordinary Chambers in the Courts of Cambodia was established in 2004 to provide long awaited justice. This hybrid tribunal, combining international and Cambodian legal frameworks, aimed to prosecute senior and non-senior leaders of the Khmer Rouge that were considered to be the most responsible for the crimes of genocide, crimes against humanity, war crimes, destruction of cultural property, and select Cambodian Penal Code offenses. Operating in Phnom Penh, the ECCC sought to deliver justice in situ, embedding the process within the local context.
The ECCC tried a handful of high-profile cases. Case 001 convicted Kaing Guek Eav, head of the S-21 prison, for crimes against humanity. Case 002, the tribunal’s centerpiece, targeted senior Khmer Rouge leaders Nuon Chea, Khieu Samphan, Ieng Sary, who died during proceedings, and Ieng Thirith, who was found unfit to stand trial due to progressive dementia. Split into sub-trials, Case 002/01 addressed forced evacuations and executions of soldiers, while Case 002/02 tackled forced marriage, genocide, and other atrocities. Cases 003 and 004, which involved investigations of other Khmer Rouge officials, were mired in political controversy and never reached trial. Despite challenges such as political interference, funding shortages, and slow progress, the ECCC delivered significant verdicts, though its legacy remains debated.
Hybrid Court In Situ
Location
The ECCC’s physical and political location was deliberate. The court was technically situated in Phnom Penh, but in reality it sat on the outskirts of the city, in a military compound that had been artificially included within the capital’s boundaries as part of the negotiated arrangement between the Cambodian government and the United Nations. This physical separation was not insignificant, it contributed to a sense of insulation from the political heart of the city, and from the more acute political pressures that in situ tribunals often face. It also, perhaps intentionally, placed the proceedings more out of view from the public.
The fact that proceedings were held in the country where the crimes occurred shaped every aspect of our work. Being on Cambodian soil brought the defense team closer to the history, culture, and people most affected by the Khmer Rouge regime. Being in Cambodia allowed us to walk the ground—visiting key sites, meeting survivors, and seeing with our own eyes the places the alleged events occurred.
Public pressure and safety concerns often accompany in-country tribunals, but I felt less at-risk than my counterparts in other cases at the ECCC. The events I was litigating had occurred forty years earlier, and my client Khieu Samphan held little significance to the public, especially to younger generations who were not as familiar with him. Our team was able to speak and act with a measure of independence that, in many international legal contexts, can be hard to come by. But not all of the accused at the ECCC were seen the same way. In Cases 003 and 004, which involved individuals who remained closer to the contemporary political elite, the tribunal came under far greater political interference from the Cambodian government and these cases ultimately collapsed.
Perceptions of Local Communities
Despite being physically located in Cambodia, the ECCC often felt distant from the lives of everyday Cambodians. In theory, the tribunal’s presence on national soil was meant to bring justice closer to the people, foster awareness, and offer a sense of collective reckoning with the past. But in practice, many Cambodians were unaware that the tribunal was even operating. Among those who did know, opinions varied widely.
For one, a significant portion of the population had little personal memory of the Khmer Rouge regime. The crimes prosecuted had occurred more than 40 years earlier. Many people simply hadn’t been born yet, or were too young to remember. The crimes during the Khmer Rouge era, for many, was not a matter of lived experience but of distant history—something they had learned about, but not something they felt intimately connected to.
From where I sat, it felt like people were watching from afar. It is not a popular perspective, especially from the standpoint of the official ECCC outreach and communications efforts. They worked hard to engage the public. Buses were organized to bring villagers to court and sometimes people would wake up as early as 3 a.m. to travel long distances just to be present in the courtroom for a few hours. That level of commitment speaks volumes. But at the same time, it does not necessarily reflect widespread engagement or understanding. Whether or not the trials resonated with the general population depended heavily on the community. Some communities were better informed, often because of the targeted outreach or the presence of civil society organizations, while others remained detached.
The reality is that the legal proceedings were complex and often inaccessible. The hearings were dense with legal argument, procedural back-and-forth, and references to international jurisprudence. For many in attendance, especially those without legal training or prior exposure to international criminal law, it was difficult to follow. Some tuned in during major moments, like when a judgment was handed down, or when the trial was featured in a television program. Victims, too, came to court and followed the process closely, particularly those who had participated directly as civil parties. But beyond those moments, it is hard to say that the general public was actively following the trial day to day.
Cambodia’s political climate at the time was also tense. Democracy was increasingly hollowed out. Human rights abuses were ongoing, and political opposition was curtailed. In such a context, it is understandable that many Cambodians had more immediate concerns than a decades-old accountability process. Daily survival, political uncertainty, and social struggles were far more pressing for most people than the inner workings of the courtroom. In the end, while the ECCC aimed to bring international justice home, the connection between court and community was often limited—shaped as much by politics and daily realities as by legal process or historical memory.
Political Context
Understanding the crimes committed under the Khmer Rouge regime requires situating them within the broader geopolitical landscape of the time. Any analysis of what happened in Cambodia between 1975 and 1979 that overlooks the Vietnam War, the Cold War, and the resulting climate of nationalism and suspicion toward foreign influence misses crucial context. The crimes did not occur in a vacuum. The Khmer Rouge’s ideology and actions were shaped, in part, by Cambodia’s fraught relationships with its neighbors and the broader international order. Cambodia became a battleground, both literally and ideologically, between communist and anti-communist forces. The Khmer Rouge regime was intensely nationalistic and paranoid about foreign influence, which shaped an ideology that sought to purge Cambodia of capitalist systems and fueled internal purges, border attacks, and the targeting of ethnic minorities like the Vietnamese and Cham people. Understanding this climate of suspicion helps explain why the regime viewed large segments of its own population as traitors or enemies.
Revolution and nationalism can carry different meanings to people with differing histories. For countries that gained independence through long and protracted struggles, concepts like revolution can hold a different moral and political weight. Understanding the Khmer Rouge’s ideological mission as an extreme outcome of a radicalized, nationalistic response to perceived external and internal threats provides context as to why certain policies were pursued. This context informed some of our defense positions. We did not seek to excuse crimes or minimize suffering, but we aimed to explain the conditions and motivations that shaped individual and collective actions at the time. These historic and factual layers matter, and it is our role as defense lawyers to bring them to light. Unfortunately, in international criminal trials, we are often given very little space, either in terms of time or pages, to fully articulate this context.
Hybrid Framework
In addition to the location, the court’s hybrid framework brought unique perspectives, tools, and challenges. Every chamber and organ, including investigative judges, prosecutors, and defense, had to be composed of both Cambodian and international members. Judicial decisions had to be reached jointly by national and international judges, meaning every step of the judicial process required careful communication across cultural and legal traditions.
This structure profoundly shaped how the court and teams operated and created an environment of strong collaboration. Cambodian lawyers and local translators brought essential linguistic, legal, and cultural fluency to the team. All court documents had to be filed in Khmer, French, and English so that every judge could follow proceedings in their working language. Working across three languages was demanding, but our trilingual jurist Seng Socheaya became the team linchpin who held everything together.
A mixed national-international team was essential in shaping each lawyer’s legal and professional approaches into a unified vision that took local customs and norms into consideration. Even the seemingly straightforward task of preparing questions for a witness became challenging when approached from different legal traditions and cultural norms. What might be a perfectly acceptable question in a Western courtroom could be misunderstood—or even offensive—in a Cambodian context. Local norms shaped not only how questions were asked, but how witnesses responded, and how the evidence was interpreted. In the end, the hybrid structure of the ECCC, while complex and sometimes unwieldy, was essential to its legitimacy and effectiveness.
Investigations
The investigative process at the Extraordinary Chambers was unique in its procedural grounding within the Cambodian legal tradition, which itself draws heavily on the French civil law system. This had a tangible effect on how evidence was gathered, presented, and evaluated throughout the trial process. The Prosecution conducted its investigation and presented it to the investigating judges, while the defense played a limited role in the investigation phase. Although defense lawyers could submit requests to the investigating judges, they could not conduct field investigations as they often do at other international tribunals. As a result, defense teams at the ECCC were confronted with an immense case file with unfamiliar evidence, which presented a greater obstacle to the trial process than in any other international or hybrid tribunal. On my part, I only arrived in the case at the trial stage.
This created significant hurdles in preparing an effective defense, particularly given the scale and complexity of the charges, which spanned more than four years and involved events across the entire country. The volume of evidence which we were required to review was staggering as the investigating judges could admit virtually anything into the record—including entire books. In my perspective, this overwhelming amount of material was the greatest challenge, and marks one of the most striking differences between domestic and international defense practice.
Witness statements were obtained in a formal way before the investigative judges, a process I was more familiar with as someone trained in civil law systems. Common law systems place more weight on the adversarial process, with cross-examination serving as the principal method of testing the reliability and truthfulness of evidence. While this method was present at the ECCC, the pre-trial investigative process laid a far more substantial foundation for the eventual trial proceedings. In addition, most of the interviews at the ECCC were recorded, allowing both the Prosecution and Defense to assess how the statements had been produced. For instance, we could determine if the statements were in response to an open, direct, or leading question. Through this our team had a clearer sense of if the translation of statements was poor or inconsistent, if the victim may not have understood the question, if the question was asked in an aggressive way, or if the victim may have been nervous in providing his or her answer. The national lawyers were especially important in verifying and analyzing the contents of the statements.
In other international tribunals, like the ICC, witnesses are only heard in the field by prosecution investigators. The defense only receives the finalized statement, and does not have insight into the investigative or interview process. Teams do not have information about the context in which the statements were made, making it difficult to evaluate the witness statements and assess the quality or reliability of the evidence. The ECCC model on that specific aspect offers important lessons for international courts like the ICC, particularly in demonstrating how greater transparency in the investigative and interview process can enhance the evaluation of evidence and the fairness of trials.
Funding and Timing
In theory, international criminal law is about fairness, due process, accountability, and closure for victims. In practice, international criminal tribunals are politically and financially driven, shaped by the interests and expectations of the states and institutions that create and fund them. Donors do not fund tribunals expecting acquittals. The money comes with expectations, often unspoken but deeply understood: justice, in the eyes of many funders, means convictions. It means holding someone responsible, visibly and symbolically. If trials result in acquittals, the tribunal is seen by many as a failure.
The ECCC was supposed to be co-funded by the Cambodian government and international donors, but the Cambodian side often failed to meet its obligations. When that happened, operations ground to a halt—interpreters would strike, proceedings would pause, and uncertainty would set in. Eventually, another donor would always step in to bridge the gap, but not without delay and disruption. A court that existed to serve impartial justice found itself constrained by the funding cycles and political priorities of distant capitals.
The tribunal was enormously expensive, but for all its ambition and symbolism, the ECCC heard only a handful of cases. The length of the trials, the complexity of the hybrid system, and the layers of translation and coordination made the process slow and costly. These tensions were compounded by time constraints. The ECCC began its work decades after the crimes and many of the accused were elderly and in poor health. From the outset, there was a race against the clock to ensure that trials concluded before defendants died or became unfit to stand trial. This urgency led to a series of procedural choices, such as severing case 002 into multiple, smaller trials. The idea was to simplify the case into specific issues and expedite the process. But in practice, it had the opposite effect.
Rather than streamlining the proceedings, severance led to duplication. Issues litigated in the first trial 002/01 resurfaced in the second 002/02. Legal determinations from one case influenced the other in ways that undermined procedural fairness. We found ourselves constantly revisiting arguments and rulings, trying to untangle their consequences for our defense strategy, and litigating issues that impacted the fairness of procedures in the second trial. The clock was always ticking, but the shortcuts meant to save time ended up costing more of it.
And as proceedings dragged on, money and motivation ran thin. Donors became less enthusiastic. Resources dwindled. The brunt of the time pressure fell to the defense team who were expected to review thousands of pages of evidence under short timeframes, perform under impossible deadlines, and respond quickly to shifting legal frameworks. Looking forward, there are lessons to be learned. Prosecutors might consider bringing fewer, better-supported charges. Narrowing the scope to focus on the strongest evidence could result in shorter, more effective trials and it would also help preserve the credibility of the institutions.
Defending the Principles of Law
At the center of international criminal trials is the determination of individual criminal liability. These courts ultimately are not truth commissions, nor are they tasked with writing history. Their mandate is legal, and their aims are rooted in principles of law. For defense counsel, this means our job is not to deny the tragic crimes that occurred or to dismiss the suffering of victims. Rather, it is to test the prosecution’s case and the alleged implication of our client within the proposed evidence.
Objectivity is the starting point. A defense lawyer must work constantly to remove preconceived notions and personal reactions in order to analyze the evidence as neutrally as possible. The defense hopes—and expects—that judges and observers do the same. In my experience, the most dedicated defense lawyers hold profound respect for the victims and for those who have suffered, but ultimately are required to question whether their client is legally and individually responsible for specific acts. That is the fundamental purpose of the defense lawyer.
Symbolic Justice
International and hybrid tribunals tend to operate under immense political and symbolic pressure. The accused often become stand-ins for entire regimes or histories of violence. When only a few individuals are tried for mass atrocities, the pressure to convict those individuals increases, especially in the early stages of a tribunal’s life. At the ECCC, moral outrage, public sentiment, and political optics sometimes threatened to override the principles of law. But defense lawyers have a duty to hold the line. We are not there to deliver moral verdicts. We are there to ensure that legal standards are upheld, even when the events in question are horrifying and the public demands punishment. If symbolism is permitted to eclipse substance, then the tribunals risk undermining the foundation of the system it seeks to uphold.
Jurisprudence
The trials at the ECCC were designed to represent justice on a grand scale. But that symbolism could sometimes overshadow the substance of the law. The Court was supposed to judge the accused according to the legal framework that existed in Cambodia between 1975 and 1979 but in practice, the jurisprudence applied to their cases was often drawn from international rulings that came decades later—particularly from the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda. That meant retroactively applying legal standards that had not existed at the time of the alleged crimes and that the accused could not forsee, raising fundamental concerns about legality and fairness.
In my case at the ECCC, the central legal issue was whether it was justifiable to convict my client Khieu Samphan, who held a particular leadership position at the time of the conflict, for acts he neither committed nor ordered, in locations he had never set foot in. Could he have known, between 1975 and 1979, that he bore legal responsibility for certain crimes under a theory of liability that did not yet exist? That was the question my team posed to the Chamber. We maintained throughout that our submission was both factually and legally correct. While the verdict ultimately did not reflect our position, the full submission reveals legal and factual issues that are far more complex than the conviction suggests.
Legal Integrity
One of the major challenges in the Samphan case involved the principle of legal integrity—the idea that the law must be applied consistently and fairly, without bending principles to achieve a desired outcome. The mode of liability that the prosecution ultimately used to secure the conviction, that of joint criminal enterprise, did not appear in the original indictment. Instead, it was introduced and built into the case over time, during the trial itself. Joint criminal enterprise, a doctrine developed by the judges of the ICTY, permits conviction for crimes that an accused did not commit or intend, if those crimes were foreseeable outcomes of a common criminal plan. It remains highly controversial, in part because of its attenuated connection between the accused and the acts in question.
This shift in the trial process felt as though the legal system had been subtly recalibrated to ensure a conviction. This is a problem that many defense lawyers face in international criminal law. Despite the appearance of adherence to the law, the reality is that no judgment in international criminal law is ever based on law alone. Social context, political expectations, and the legal, personal, and cultural backgrounds of judges all exert an influence. A judge may feel morally opposed to acquitting someone who is seen as a symbol of a brutal regime, even if that is what the law requires. That pressure can shape how modes of liability are interpreted and applied, and what kinds of evidence are considered sufficient to establish criminal responsibility.
The definitions of crimes are clear, but the modes of liability for the accused are not. The uncertainty in how judgements are rendered makes the defense’s work highly unpredictable and undermines the rights to a fair trial. But defense lawyers ultimately do not make the final decision, and it is someone else who bears that final responsibility. We can only present the applicable law, apply it to the facts, and argue the elements as rigorously as possible. Even in defeat, we hope that the legal reasoning we advance through our submissions will be seen and acknowledged by others. At the very least, we aim to leave behind a clear and principled record that others can examine and use in the future—one that upholds the integrity of legal reasoning, even when the conclusion is politically or morally contested.
The work of a defense lawyer does not stop at the courtroom door. In my client’s case, he was more than 80 years old and struggled with the conditions of detention. We had to continually litigate to secure better conditions for him and ensure that his basic human rights were respected. This work outside of the courtroom matters. It is part of maintaining the fundamental integrity of the law: that every person, no matter who they are or what they have been accused of, has rights. Detention during trial is not about punishment; it is about safeguarding the process while preserving the rights of prisoners. Upholding those rights, both inside and outside the courtroom, is also central to the defense lawyer’s role.
Understanding the Basis for Conviction
My client, Khieu Samphan, was an educated man who had studied in France. We got along well and he enjoyed discussing French literature and politics, and had a broad curiosity about the world. But despite this rapport, there were also significant generational gaps, especially when it came to explaining the legal theory underpinning his prosecution. The idea of joint criminal enterprise was difficult to transmit—not just to the client, but also to many lawyers and judges. How do you explain to someone that they are being held criminally responsible for crimes they neither ordered, committed, nor knew about because their presence at a meeting is interpreted as joining a common plan? It is a profoundly complex legal construct.
Samphan read extensively about the Khmer Rouge from the outside—what others had written about the regime that he had been part of. He was not wealthy, nor did he profit from the regime in the way some others might have. He spent years living in the jungle in basic conditions, and then in prison. I imagine that for an elderly person, confronting such a radically different version of the reality that you had lived, as told by others, was difficult.
Despite his old age, Samphan was committed to understanding his trial and prosecution. He read every document in the case file. He actively participated in the defense and was capable of pointing out issues. He could become frustrated, and understandably so. After a hearing he might say, “I have never even been there, I do not know this place!”. I would have to explain the nuances of joint criminal enterprise—that by attending certain meetings, the prosecution argued he became responsible for crimes committed elsewhere. That is a tough idea to accept for a criminal lawyer, let alone the accused himself. By the end of the trial, I believe Samphan understood the implications of joint criminal enterprise and why, in the eyes of the tribunal, he was there.
This understanding does not just matter for the accused, it matters for the victims too. It is important that victims understand the legal basis for a conviction or acquittal. Otherwise, they may feel that justice has not been done if the direct perpetrator is not the one on trial, or when the legal requirements for criminal responsibility of the one accused were simply not met.
Reflections on the Tribunal’s Legacy
Overall, many of the legal principles that emerged from the ECCC were problematic, and I hope they do not shape the future of international criminal law. I left the tribunal with deep reservations about what the ECCC contributed to developing legal doctrine, particularly in regards to its use of joint criminal enterprise and its departure from the principle of legality. Still, there is one silver lining: when you fight your case and finish your submission, the judges are required to issue a reasoned decision. The legal arguments are there, on record, for other lawyers, scholars, and future practitioners to evaluate against the decision. They can read the submissions, the judgment, and the reasoning, and come to their own conclusions. Few people are reading the thousands of pages that make up these decisions. But perhaps in the future—when the dust has settled—there will be more appetite for that kind of close reading and reflection.
Still, the ECCC was not without some value. One positive contribution was the demonstration that a hybrid model of justice could be implemented within a national legal system like Cambodia’s. It also exposed Cambodian judges and lawyers to a different model of justice. Cambodian society is deeply codified, and for many national defense lawyers there had long been a sense of hesitation or deference toward prosecutors and judges. Working alongside international defense lawyers showed what a strong, adversarial defense could look like in practice and the judges became more open to this approach. I believe that that experience was meaningful. But ultimately, it is up to Cambodian lawyers and judges to determine what they took from it and how they will build on it in the years to come.
Ways Forward
One of the enduring challenges in international criminal law is how to meaningfully acknowledge and address the suffering of victims. In any large-scale atrocity, not every crime can be prosecuted, nor every victim represented in court. A good prosecutor must build a case around the strongest evidence, which means focusing on specific incidents and locations where the credibility of witnesses and documentation is highest. This inevitably leaves many victims feeling frustrated and unseen when the violence they endured falls outside the charges or is not directly linked to the accused.
Currently, international criminal law ties victim compensation to a conviction. This is a major flaw in the system. Victims suffer harm regardless of whether a conviction is secured. In some national systems, like in France, compensation is still available even when an accused is acquitted—acknowledging that the harm itself is real and deserving of redress. International law needs to move in this direction.
In addition, justice cannot be reduced to symbolic trials of a few high-ranking individuals but rather these tribunals must be part of a broader system that supports national courts in prosecuting a wider range of perpetrators and crimes. It is an illusion to think that only elite actors or high-profile figures are responsible for atrocities. Such crimes occur within systems—enabled by institutions, policies, and social environments. Trials can illuminate these enabling structures, but they cannot dismantle or reform them. Tribunals do not mark the end or the concluding chapter of a conflict, but rather true prevention of mass atrocities require a commitment to confronting the broader social and political conditions that allow these crimes to occur in the first place.
We like to imagine that international criminal law represents the highest ideals of justice—that it is the most advanced, principled system. But the reality is more complex. Like any legal system, it is flawed. In fact, it often requires extraordinary intellectual and legal contortions to convict people who were not physically present when the crimes occurred. The system, as it stands, demands legal constructions that would be unthinkable in most national jurisdictions. Based on this, I believe it is important for international practitioners to have experience in domestic jurisdictions in order to retain a grounded sense of what criminal liability should mean. In this way, these practicioners do not lose sight of the principles that anchor criminal law—principles that can easily become abstract or distorted at the international level.
Conclusion
Reflecting on the experience of defending at the ECCC brings with it a mix of hard-learned lessons, professional concerns, and cautious hope. The tribunal was shaped by its exceptional nature: the scale and gravity of the crimes charged, the sheer volume of evidence, and the long passage of time between the atrocities and the judicial response. These factors made the task of delivering justice uniquely challenging.
The proximity of the court to the alleged crimes provided a rare opportunity for contextualized justice and working in-country, alongside Cambodian lawyers and judges, brought a partnership and immediacy to our work. The hybrid structure—though often politically and logistically strained—allowed for moments of genuine collaboration and mutual learning. We witnessed changes in how national actors perceived the role of the defense and saw the emergence of a more adversarial, rights-respecting understanding of justice. For Cambodian defense lawyers, this exposure may have been particularly significant, as it offered an alternative model to traditional courtroom hierarchies.
At the same time, there were serious limitations. Defense teams had little opportunity for field investigations and limited time to review an already completed case file. And while the symbolism of the trials drew some international and local attention, it often amounted to performative justice rather than meaningful redress for victims.
The development of legal doctrine at the ECCC left troubling legacies, particularly in its interpretation of joint criminal enterprise and the principle of legality. Too often, international criminal law has relied on abstract constructs to secure convictions of those far from the physical crime scenes, distorting fundamental legal principles. That distortion is not just technical—it speaks to a deeper challenge in international criminal justice. When legal principles are bent to meet political or symbolic aims, the legitimacy of the entire system is called into question. Justice, especially in this context, must resist the urge to perform. It must remain principled, predictable, and firmly grounded in law.
Moving forward, several lessons are clear. International trials must be more realistic in scope and timing. They cannot carry the full burden of transitional justice alone. National jurisdictions must be better supported and equipped to handle a broader range of cases, and the assumption that only high-level perpetrators matter must be re-examined. Donor support is critical and it must go beyond convictions—it must also support the rights of the accused and the adequate functioning of the defense.
In the end, the legitimacy of international criminal law depends not just on convictions or symbolism, but on the integrity of the process itself. And for that process to be truly just, it must resist the pressure to sacrifice principle for expedience, or to bend the law in service of public opinion. For defense counsel, the task remains as demanding as it is necessary. We are called not just to defend the accused, but to uphold the principles of law. Even when it is unpopular. Even when it is inconvenient. Because it is in those moments that the integrity of the system is tested and hopefully, preserved.