The Khmer Rouge tribunal found itself in the dock at the Royal University of Law and Economics in Phnom Penh. Depending on the side they were told to work on, students had to defend it or condemn it, as part of the first edition of their moot court. Debates were held in French – to celebrate the “Fête de la francophonie” – a detail which often added heaviness to the language of these would-be jurists, who stretched arguments they took here and there in the media, using relevant but also disturbing reasoning sometimes. We attended three of the sparring matches including the final, presided over in the jury by co-Investigating Judge at the Khmer Rouge Tribunal Marcel Lemonde.
The tribunal: useful or useless?
The usefulness of the court was roughly presented by young speakers who enunciated disjointed lists of arguments: “finding justice”, “seeking the truth”, “not leaving culprits wandering free and putting an end to impunity”, “strengthening the legal system”, “closing that dark chapter and writing it down in History for younger generations and for it to never happen again”, “catching national and international attention”, “healing the trauma of survivors”, asserting “the stability of Cambodia”, etc. One of the students points out the pragmatic advantage in the creation of the Extraordinary Chambers if the Courts of Cambodia (ECCC). After quoting the names of two persons from the university of Law who found employment at the hybrid court, he declares, out of the blue and his face illuminated by a smile: “This is an employment opportunity for us jurists!”
Standing opposite, their opponents remain unruffled. “The ECCC will fail to put an end to impunity”, “political and legal obstacles are many”, “the court’s mandate is limited: it must happen in Cambodia, it only concerns the period going from April 17th 1975 to January 6th 1979 and has only prosecuted five persons!”, “the mixing of Cambodian and international judges together and the use of three official languages make the process more complex”, etc... “Do you believe that justice can be found in such conditions?”, a student asks, with the voice of someone who will not be fooled. “And why judge Duch [the former director of torture centre S-21] before all the other ones who are old and on the verge of dying in their prison cell?” “What about corruption? What about bad communication at the tribunal? Citizens are ill-informed... This is a disaster! “And what about problems of funding? And the slowness of the proceedings? Those who plead in favour of the tribunal sometimes find it hard to play opposite them. “How can you already say that that court is doomed to failure?”
Students keen to exercise their free will
With her tiny and piping voice, a student goes back over the question of the number of people under prosecution. “So you think there were only five of them leading the country? No, the other persons accountable must be found, and we must not push aside the request made by Mister... er... What’s his name again? Oh, Mister Robert!” In the opposite camp, everyone is laughing up their sleeve and someone reminds her of the international co-Prosecutor’s name: “Mr. Robert Petit!”. Not taken aback by the situation, she continues. “What if we arranged a sort of conciliation between victims and former Khmer Rouge leaders – it wouldn’t cost any money! We do that when it comes to labour law, between employers and employees, so why not do it in this case? Well, I prefer saying no more, since we haven’t studied conciliation in class yet!”
At the end of these duels for selection, students sitting among the audience assure us, placing their hand over their heart, that they would have opted in favour of the tribunal if they had been given the choice. However, after insisting, a few students plainly admit that they are more like detractors of the ECCC.
“Too much money has been spent on that tribunal when only a handful of people have been put under prosecution and the country is poor!”, third-year student Sambo says. “And why aren’t Civil Party lawyers paid by the tribunal like those for the accused?”, Keam adds in a reproving tone. Their fellow student Revatey, sporting a solid stature and expressing herself in clear French, does not beat around the bush. The 20 year-old, despite the outward appearances of a well-brought-up young woman who looks slightly timorous, strikes: “This is a political tribunal!”. She explains: “The United Nations encourage this tribunal because they want to make China lose face, but China does not want these trials as they supported the Khmer Rouge! And when China makes donations to Cambodia, the court encounters problems... It is like a game between big nations. But politics should not be mixed with law! The things that matter are the effectiveness of this tribunal and the good will of its protagonists”. Without any surprise, Revatey ends up in the final round... on the side of detractors of the tribunal.
Tie in the debates and advantage for the accused
For this moot court, which was organised this time in a lecture theatre at the University, Revatey and her colleague decided to stigmatise Cambodian magistrates at the ECCC, who according to them should not be there. “They are ill-trained, it is even said that one of them doesn’t have a degree, and they are affiliated to the ruling party, the CPP!” Without any inhibition whatsoever as to their critical reasoning, they persevere: “What is that tribunal for? Strengthening our legal system, they say, but there are other means to do so!”
The camp of supporters then defends the “unique and original” aspect of the tribunal and the respect of the “right to a fair trial”. “Peace and justice are indi.. indisss.. – the young woman is desperately stuck on the word. Her colleague comes to her aid: "In-di-sso-cia-ble"! She continues: “We cannot leave this trial in the hands of internationals when they don’t know our history and law well!” And to debunk any oncoming criticism from the opposite side, her colleague declares, learnedly and standing as stiff as a lamp post: “There is no such thing as absolute justice; it is all about relative justice!”
Revatey tries again and puts the United Nations in the dock: “The UN have long acknowledged Khmer Rouge as holders of the seat for the representation of Cambodia and now they are encouraging the holding of these trials. Why did they change their position? Are the United Nations truly independent?” And she goes back over the corruption charges staining the hybrid court. The opposite side retorts: “This is a serious accusation and as a jurist you should support it with evidence. Do you have any?”, the boy asks with the face of a primary school teacher who points out the errors of a pupil. “And if the UN have acknowledged the Khmer Rouge it is only normal since the latter fooled the whole world when they gave to their regime the name of Kampuchea Democratic”, he says, against all expectations.
Still too early to judge the tribunal
Judge Lemonde, as the president of the jury, intervenes and tells the disputants: “You have been harsh with Cambodian judges – bad reputation, lack of competence and independence, corruption... – but what do you think of international judges?” The two girls stand up to him. The first one utters a quiet “nobody’s perfect”, which generates laughter in the room, and the second one dispels all doubts: “We do not believe that the UN are independent and have good will in the creation of that tribunal!” Shortly after, she confidently asks the adverse party: “Do you believe that international judges are fair and effective?”. Her boldness entertains the audience. Marcel Lemonde negligibly slumps into his seat, smirking. He is the one who will have the final word to issue the “verdict”.
The co-Investigating Judge at the ECCC announces: “I am compelled to declare victors those who assert that the tribunal is unfair. This is heart-wrenching. But I think that it is easier to attack the tribunal than to defend it. Whether the tribunal is fair or not, what I would have said is: “Let’s see later! It is a bit too early to judge the justice it can render! [...] People will be able to call the trial fair if the rules of fair trial are respected and if it is understandable by all. “Justice is not perfect”, he admitted. “And besides, a court rarely provides satisfaction for everyone. The Judge, defending the holding of these trials in Cambodia – otherwise it would be meaningless - , reminded the audience of the fact that judges were not historians but were there “to deal out justice”. Marcel Lemonde then expressed his wish that “those who take part in the tribunal do their best for all Cambodians and for humanity”... And also that those who defend the tribunal win during the next debates.