IN THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA

 

Case 002/01

 

 

 

 

 

On Co-Prosecutors’ Immediate Appeal of Decision Concerning the Scope of Trial in Case 002/01

Brief Amicus Curiae

In Support of Neither Party

 

 

Questions Presented

 

(1)         Lawfulness of the prosecution’s reliance on international jurisprudence as governing law;

(2)         Constitutional implications of Rule 89ter of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia and constitutional implications of the Trial Chamber’s order of September 22, 2011 to sever proceedings in Case 002;

(3)         Probative value of the prosecution’s assertion that “the prospect of future proceedings [in Case 002] is intangibly remote;”

(4)         Reconciliation and creation of a historical record as legitimate considerations in the Immediate Appeal and in these proceedings at large;

(5)         Contours of the substantive scope of proceedings in Case 002/01.

  

Interest of Amicus Curiae

 

My interest in this Immediate Appeal is to the extent that it implicates issues significantly broader than its confines. I have addressed a certain number of these issues in the various modalities of my legal writing previously. It remains my opinion that this Court has erred markedly and persistently from the outset of the process in the manner in which it established a relationship with Cambodian law. The lack of enforcement of express statutory tests by the bench has had the effect of a rudderless ship on which each sailor cites foreign authorities (often of dubious validity and sometimes from dubious sources), with the captain accepting or rejecting these authorities on the basis of ad hoc rules or considerations and at times on no discernible basis at all. At common law, this rudderlessness is often protected against by stare decisis which judges tend to be reluctant to disturb (even when they recognize that serious legal errors were committed in the decision(s) that spawned a particular line of cases). The concept of stare decisis is alien to Cambodian law. For this reason this Court is not bound by its own precedent, let alone by the precedent of other courts, Cambodian or foreign. While not protecting against rudderlessness, this also creates a far greater flexibility of correcting errors of past decisions than a common law court has, with the Constitution and statutory law serving to protect against rudderlessness. It is therefore my belief that it cannot ever be too late in this process to correct the errors of past decisions by simply not repeating them. 

My interest in whether the prosecution succeeds in obtaining an order to include the locations which it seeks to include through the Immediate Appeal is minimal and to the extent that it does exist it is peripheral to the manner in which the Supreme Court Chamber will analyze the soundness of the legal math of the Immediate Appeal. My interest can therefore be aptly described as ensuring the correct construction and application of the legal math to the exclusion of all other considerations, with the exception of safeguarding against erosion of constitutional rights.                

 

Table of Contents

 

(1)         Lawfulness of the prosecution’s reliance on international jurisprudence as governing law	6-19
(2)        Constitutional implications of Rule 89ter of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (hereinafter ‘ECCC IRs’) and constitutional implications of the Trial Chamber’s order of September 22, 2011 to sever proceedings in Case 002	19-31
(3)        Probative value of the prosecution’s assertion that “the prospect of future proceedings [in Case 002] is intangibly remote	32-33
(4)        Reconciliation and creation of a historical record as legitimate considerations in the Immediate Appeal and in these proceedings at large	34-37
(5)        Contours of the substantive scope of proceedings in Case 002/01	37-44

 

 Argument

 

(1)         Lawfulness of the prosecution’s reliance on international jurisprudence as governing law.

 

In the Co-Prosecutors’ Immediate Appeal of Decision Concerning the Scope of Trial in Case 002/01 (hereinafter ‘Immediate Appeal’) the prosecution refers to “govern[ing] law” and “the correct legal standard for severance of charges.”[1] The prosecution begins its analysis of the Trial Chamber’s Notification of Decision of October 8, 2012 (hereinafter ‘Notification of Decision’) with citations of the case law of the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICTY’) which is indicative of the prosecution’s contention that ICTY case law forms a part of the governing law of this jurisdiction and is the law that at least in part governs the Trial Chamber’s exercise of discretion regarding severance of proceedings. Before the correctness of the prosecution’s reading of relevant ICTY case law is reviewed the Supreme Court Chamber must determine whether ICTY case law can be governing law in this jurisdiction at all and if so under what circumstances.

The Constitution states that the National Assembly and the Senate are the “organ[s] which ha[ve] legislative power.”[2] Exercising this legislative power the National Assembly and the Senate adopted a statute that established the ECCC. Upon the adoption by the legislature the statute was certified as constitutional by the Constitutional Council and subsequently and appropriately promulgated by the King. Being a lex specialis, this statute’s nature contains two key elements: (1) in a situation of conflict it prevails over any lex generalis that might govern the facts; and (2) through it the legislature said everything it meant to say on the subject. Thus, the ECCC Law prevails over any other relevant law that is non-specific to the ECCC proceedings and through the ECCC Law the Cambodian legislature said everything it meant to say on the subject of the ECCC proceedings. On the question of the law applicable to the ECCC proceedings the ECCC Law is permeated with the phrases “existing procedures” and “existing procedures in force.” (‘Permeated’ is the appropriate term to describe the frequency with which the legislature used these phrases and in relation to how many disparate issues it sought to regulate by so doing). As such, the statute stated that “existing procedures” and “existing procedures in place” would govern the appointment of ECCC judges,[3] the appointment of the Co-Prosecutors,[4] prosecutions initiated by the Co-Prosecutors would be conducted in accordance with “existing procedures in force,”[5] investigations would be governed by “existing procedures in force,”[6] appointment of the Co-Investigations Judges would be in accordance with “the existing procedure for appointment of judges,”[7] trials would be conducted in accordance “with existing procedures in force”[8] and in camera orders would be entered in accordance “with existing procedures in force.”[9] This vividly demonstrates that the legislature meticulously sought to cover all the bases to ensure which it employed a great level of specificity (instead of merely issuing a single umbrella enjoinment to this effect). What the legislature meant to say and what it did say is uncomplicated to see from the plain text of the statute – it sought to ensure that the “existing procedures” and “existing procedures in force” were the governing law of the ECCC proceedings. The textualist interpretation of the statute is not the only method that compels this reading of the statute. Purposive interpretation compels the same reading – an analysis of early statements of the Royal Government of Cambodia (hereinafter ‘RGC’) evinces that one of the purposes of the ECCC process was to ensure that it was seen as a national process.[10] Therefore, even if plain-text meaning of the statute were unclear (which it is not), purposive interpretation of it would have produced the same result as textualist one. The statute does not leave us with a cliffhanger regarding the intended meaning of “existing procedures” and “existing procedures in force.” What was meant by these phrases became a part of another ECCC statute entitled ‘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’ (emphasis added). It is therefore clear that what the legislature meant by “existing procedures” and “existing procedures in force” was Cambodian law. In so doing the legislature expressly cabined certain matters to Cambodian law (the appointment of judges, appointment of the Co-Prosecutors, appointment of the Co-Investigating Judges and ordering of in camera proceedings) while subjecting others (prosecutions, investigations and trials) to a disjunctive 3-part test the satisfaction of which was designed to permit going beyond Cambodian law in search of sources of law. By establishing the 3-part test the legislature reinforced its intent of having the Cambodian law hold primacy in the ECCC proceedings, of external sources of law having a status inferior to it and of permitting resort to external sources of law only in a set of limited circumstances expressly prescribed by the legislature through the 3-part test. Now is the time to answer the question of how inferior. By adopting a statute that had “under Cambodian law” as part of its title, the legislature placed Cambodian law in the position of governing or controlling law of the ECCC proceedings. It placed the external law worded as “procedural rules established at the international level” in the position of the law of “guidance.” Guidance by definition entails existence of advice and existence of a choice as to whether to accept that advice. Guidance is therefore a tool of persuasion, not one of enforcement of that which has been ordered. Rephrasing, mutatis mutandis, a well-establish maxim in another jurisdiction, “[legislature] knows how to say” what it means to say and therefore would have chosen a word other than ‘guidance’, had it meant to convey something other than what is contained in the plain meaning of ‘guidance’. It is therefore important to emphasize that ‘guidance’ is suggestive of persuasive law, not of binding law, and that the legislature meant to make that distinction. This distinction is reinforced by the legislature singling out certain types of international law as binding law. This has manifested itself in ‘shall’ that introduces the “international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights”[11] (hereinafter ‘Justice, Fairness and Due Process Clause’) and the international crimes within the jurisdiction of the ECCC[12] which are equally introduced by a shall. In its rendering of the democratic choice the legislature is not constrained by anything other than what has been foreclosed to democratic choice by the Constitution and the obligations undertaken by Cambodia under international treaty law. The Cambodian legislature’s choice of assigning “procedural rules established at the international level” a status of persuasive law and raising a wall of separation between it and governing or controlling law by relegating “procedural rules established at the international level” to the rung of last resort unlocked only by passage of a test is not without precedent in the domestic law of other jurisdictions (which is of no consequence to this discussion other than to show that the Cambodian legislature’s choice was not idiosyncratic). As such, seeking to secularize the country’s law the Afghan Constitution of 1964, for example, stated that the governing law was the Constitution and the laws passed by both houses of the Afghan parliament but permitted access to religious law (“the Hanafi jurisprudence of the Shariaat of Islam”) subject to the satisfaction of the test of “[i]n the area where no such law exists”[13] thus relegating religious law to the status of being governing law (introduced by ‘shall’ unlike the same being introduced by ‘may’ in the ECCC Law) in the limited circumstances of lacunae left by the Constitution and statutory law.[14]

Given the Cambodian legislature’s relegation of “procedural rules established at the international level” to the level of persuasive law, the Supreme Court Chamber should never permit an argument that “procedural rules established at the international level” can ever be considered binding law in this jurisdiction to succeed (the Trial Chamber has expressed what might be seen as the nascence of agreement with this)[15] (exceptions to this rule are permissible when, for example, the Trial Chamber had been repeatedly persuaded by a particular “procedural rule established at the international level” and had a sudden and unexplained change of heart that adversely affected the applicant). Nor should the Supreme Court Chamber ever permit successful reliance on “procedural rules established at the international level” without the applicant satisfying the disjunctive 3-part test. The satisfaction of this test may not be implicit in the very fact of the applicant’s reliance on “procedural rules established at the international level” as this implication would be de facto operated by a presumption that either all of Cambodian law is deficient in some way that satisfies at least one prong of the 3-part test (and therefore testing individual contentions of this deficiency is an exercise in futility) or that the applicant’s determination that it is deficient in a particular situation binds the Court. There is therefore no room for acceptance by implication emanating from the mere fact of application unless or until the Supreme Court Chamber is prepared to declare that all of Cambodian law is deficient in some manner sufficient to satisfy at least one of the prongs of the 3-part test.[16] A declaration of this type would fling the door of this Court wide open to “procedural rules established at the international level.” Whether this declaration is in our future, at the time of writing no such finding has been made by the Supreme Court Chamber. Until or unless the Supreme Court Chamber makes such a declaration this Court’s door to “procedural rules established at the international level” is chained, bolted and padlocked and the applicant must unchain, unbolt it and remove the padlock (all accomplished through the 3-part test) each time he seeks entry.     

In the Immediate Appeal the prosecution turned the ECCC Law on its head regarding the above and barged into “procedural rules established at the international level” without doing the unchaining, unbolting or removal of the padlock. This is evident from the prosecution commencing its analysis of whether the Trial Chamber committed an error of discretion with “procedural rules established at the international level” in this case manifested by the ICTY case law. The prosecution pretermitted that which was designated by the legislature as governing law as if it did not exist and as if the 3-part test explicitly established by the legislature and that permeates the ECCC Law did not exist. In the meantime, the law designated as governing by the legislature had a provision that delineated the scope of the Trial Chamber’s discretion regarding the issues raised by the prosecution. This provision states that “the presiding judge may exclude from the hearing everything he deems to unnecessarily delay the trial hearing without being conducive to ascertaining the truth”[17] (emphasis added). Under the governing law therefore this discretion appears to be untrammeled and is not subject to review at the appellate level (although for the sake of inclusiveness it is important to note that it is not expressly barred). If the prosecution was not content with the content of this provision, if could have endeavored to seek access to “procedural rules established at the international level” by arguing that the content of the provision satisfied one of the prongs of the 3-part test (perhaps, the ‘inconsistency’ prong). Had the prosecution managed to satisfy the Supreme Court Chamber of that the prosecution would have had a lawful opportunity to rely on the ICTY case law of which it appears so enamored. The Supreme Court Chamber then would have had to determine (1) whether the ICTY Appeals Chamber’s finding in Haradinaj may be of “guidance” to the Supreme Court Chamber within the meaning of “procedural rules established at the international level” and regarding the Immediate Appeal, given its particulars: it is a two-year old finding (not a rule) established by a jurisdiction external to this Court; it is a finding that was arrived at in a manner in which not a single authority was cited; and it is a finding that has been cited as a rule by no one in the intervening period; (2) the larger issue of the indicia of external judicial findings which rise to the level of a “procedural rule[] established at the international level;” and (3) whether issues that implicate constitutional rights may be relegated to the realm of trial management for the purpose of finding certain sets of circumstances comparable and thus certain international rules applicable to similar sets of circumstances (in this case to permit the possibility of the Supreme Court Chamber’s acceptance of the prosecution’s invitation to be guided by the prosecution’s reading (which is facially and patently incorrect because the ICTY Appeals Chamber established a rule for a “successful [] challenge [of] discretionary decision[s] on provisional release”[18] (emphasis added), not a matter that lies within the trial court’s trial management discretion (I am hopeful that the prosecution understands the difference between one and the other – one is a right of the highest constitutional rung (liberty + presumption of innocence) and the other is an administrative matter (which in the circumstances of this Court’s jurisdiction would be an equivalent of a proclamation (prakah) or more likely of a circular (sarachor) of the ICTY Appeals Chamber’s provisional release decision in Prlic)). In the best of circumstances for the prosecution the sum total of all of the above will still not produce the effect the prosecution wishes it to produce, i.e. all of the above combined will not amount to a governing or controlling law on the matter. This means that the Supreme Court Chamber will still be able to choose not to be guided by said law and opt for another “procedural rule[] established at the international level” (unlike the Bosnian War Crimes Chamber, for example, the ECCC is not an outgrowth of the ICTY and therefore is not confined to the ICTY case law in its search for “procedural rules established at the international level”), even if the Supreme Court Chamber finds that the prosecution’s reading of the authorities cited is correct. As such, there can be no such thing as “the correct legal standard” (emphasis added) under the “procedural rules established at the international level,” as the prosecution contends, but only ‘a correct legal standard.’    

At present, it does not appear that the Supreme Court Chamber has any reason to go rule-shopping to “the international level” as the “existing procedures” and “existing procedures in force” contain a sufficient basis for addressing the prosecution’s contention regarding the Trial Chamber’s exercise of its discretion in determining the scope of Case 002/01. This basis is article 318 of the Criminal Procedure Code. To successfully appeal the impugned exercise of Trial Chamber’s discretion the prosecution’s burden in the Immediate Appeal was twofold: (1) to identify the governing law correctly; and (2) to show that in the impugned exercise of its discretion the Trial Chamber violated the lawful scope of its discretion contained in “the presiding judge may exclude from the hearing everything he deems to unnecessarily delay the trial hearing without being conducive to ascertaining the truth.” The prosecution did neither of these. The mere meeting of the prosecution’s twofold burden still would not have had the effect of gaining access to the Supreme Court Chamber as there is no reason to believe that this discretion is subject to appellate review under the “existing procedures” and “existing procedures in force.” As such, to render it appealable the prosecution would have had to either convince the Supreme Court Chamber of a reading of the “existing procedures” and “existing procedures in force” that compels that result or convince the Supreme Court Chamber that said discretion, as prescribed by “existing procedures” and “existing procedures in force,” is deficient within the meaning of the 3-part test that, in turn, allows for rule-shopping “at the international level” that, in turn, reaches the ICTY case law as a matter of proffered (not governing or controlling) “rules of procedure established at the international level” on the matter. The prosecution neither attempted, nor accomplished either of these.

 

(2)         Constitutional implications of Rule 89ter of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia and constitutional implications of the Trial Chamber’s order of September 22, 2011 to sever proceedings in Case 002.

The prosecution invites the Supreme Court Chamber to define “interest of justice” within the meaning of Rule 89ter of Internal Rules of the ECCC (hereinafter ‘ECCC IRs’), once again, through the ICTY jurisprudence. It is entirely immaterial whether the prosecution is correct about its analysis of the relevant ICTY jurisprudence and whether the kiss that it blew (I am using words with all deliberate precision and this is the only fitting expression to describe what the prosecution did as this is not how one analyzes statutory tests) to the 3-part test on its way out of this Court’s governing law and into the ICTY jurisprudence is an acceptable form of satisfying a statutory test in this jurisdiction. It is immaterial because the question the prosecution is asking cannot be answered without the Supreme Court Chamber first answering the question of whether Rule 89ter is constitutional and whether the Severance Order of September 22, 2011 (hereinafter ‘Severance Order’) is ipso facto constitutional.

Rule 89ter was adopted by a plenary meeting of ECCC jurists on February 23, 2011 and as the Trial Chamber was setting Case 002 down for trial and without a doubt with the specific purpose of severing the proceedings in Case 002. Rule 89ter states the following: “[w]hen the interest of justice so requires, the Trial Chamber may at any stage order the separation of proceedings in relation to one or several accused and concerning part or the entirety of the charges contained in an Indictment [;] [t]he cases as separated shall be tried and adjudicated in such order as the Trial Chamber deems appropriate.” The discretion the Trial Chamber, acting with others, granted itself is patently broad. While it may seem to be fettered by the “interest of justice” clause, the meaning of what appears to be a term of art can only be gleaned piecemeal from “existing procedures” and “existing procedures in force” and is therefore open to broad interpretation (whatever the Supreme Court Chamber might find this breadth to be this breadth is facially greater than the confines of the plain meaning of the text of the relevant interlocking provisions of “existing procedures” and “existing procedures in force”). It therefore would be fair to conclude that absent an authoritative definition of ‘interest of justice’ the “interest of justice” clause does little to constrain the Trial Chamber’s discretion to separate proceedings under Rule 89ter. The Trial Chamber’s discretion as to trial and adjudication of separated cases is, however, only unfettered insofar as the order in which these cases are tried and adjudicated. There are two key modalities of severing a case implicitly contained in Rule 89ter: the vertical one (where accused are separated from one another) and the horizontal one (where charges are separated from one another) (this reading of Rule 89ter comports with that of the Trial Chamber).[19] What the Trial Chamber did in Case 002 is both: Ieng Thirith’s separation was vertical and the breakup of Case 002 into “a number of discrete cases” was horizontal. Rule 89ter appears to provide that cases resulting from a severance are treated as independent cases that the Trial Chamber has the power to try and adjudicate. The Trial Chamber reinforced this reading of Rule 89ter in the Severance Order by using the word ‘discrete’ to characterize the cases resulting from the ordered severance. The Trial Chamber’s position that the ordered severance will be total is expressed through the Trial Chamber’s elucidation of the “shall be tried and adjudicated” clause of Rule 89ter to state that “[a]t the conclusion of the first trial a verdict in relation to these allegations, and appropriate sentence in the event of conviction, will be issued.”[20] In sum, the Trial Chamber informs that the horizontal separation ordered is total, i.e. separate trials will be held in each of the “discrete cases” resulting from the ordered separation; each trial will result in a verdict and a sentence (if applicable); these trials will be held in a sequential manner and in the sequence ordered by the Trial Chamber; subsequent trials in the “discrete cases” will commence irrespective of the status of the appeals of the judgment in the previous “discrete cases.”[21]

The Constitution enumerates a limited number of rights relevant to the criminal process. The right to “be considered innocent until the court has judged finally on the case”[22] is one of these rights. It is salient to note that the same right worded as “[t]he accused shall be presumed innocent as long as the court has not given its definitive judgment” (the difference in the wording only exists in the English versions of these two laws; in Khmer, the wording of the right in the Constitution is identical to that in the ECCC Law). The fact of “be considered innocent until the court has judged finally on the case” being framed as a constitutional right has taken it out of regulation through democratic choice. As such, in the ECCC Law the option of altering or displacing the constitutional right to “be considered innocent until the court has judged finally on the case” was foreclosed to the legislature. The only option that remained open to the legislature was to merely replicate the constitutional right. Consequently, the right to “be presumed innocent as long as the court has not given its definitive judgment” in the ECCC Law is not a discrete right created by the legislature to serve the purpose specialis of this lex specialis but a mere reproduction of the constitutional right. The Supreme Court Chamber therefore has no option of applying the right to “be presumed innocent as long as the court has not given its definitive judgment” as a statutory right but has to treat it as the constitutional right to “be considered innocent until the court has judged finally on the case,” with all the implications that will have.       

In arriving at the meaning of this right (interpretation of the Constitution is the province of the Constitutional Council),[23] a number of sources are available to the Supreme Court Chamber. The primary sources of the right are those which were available to the constitutional drafters and the Constituent Assembly at the time of the constitutional drafting and approval processes. The text of the Constitution explicitly identifies some of these sources as “the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights.”[24] The “covenants and conventions related to human rights” clause has never been interpreted and as such there is presently no authoritative meaning of it available but it would not be unreasonable for the Supreme Court Chamber to assume that the word “covenants” in it refers to the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (hereinafter ‘ICESCR’). The argument for these two treaties being the content of “covenants” is simple – there are no other international human rights instruments that are known as ‘covenant’. Given that the ICESCR is of little relevance to the criminal process and of no relevance to the right to “be considered innocent until the court has judged finally on the case,” the Supreme Court Chamber’s principal tool of arriving at the meaning of the right to “be considered innocent until the court has judged finally on the case” is the ICCPR. Access to the ICCPR grants the Supreme Court Chamber access to its text which contains the right to “be considered innocent until the court has judged finally on the case” worded as “the right to be presumed innocent until proven guilty according to law” (the wording of the right in the Khmer version of the ICCPR differs from that of the Constitution)[25] and access to authoritative interpretations of the ICCPR’s administrative organ, the Human Rights Committee. The other source of arriving at the meaning of the constitutional right to “be considered innocent until the court has judged finally on the case” available to the Supreme Court Chamber is the predecessor of the current Constitution – the Cambodian Constitution of 1989 which contains an identical right[26] (the problem with this source is twofold: (1) little jurisprudence regarding its meaning or application might be available; and (2) none of the Cambodian judges currently serving as Supreme Court Chamber judges were in the judicial profession during the run of the 1989 Constitution (1989-1993); however, some of the current Cambodian judges of the Supreme Court Chamber were involved with the judicial system in other capacities at the time and might be able to shed light on the contemporaneous meaning of the right and its application). In arriving at the meaning of the right to “be considered innocent until the court has judged finally on the case” the Supreme Court Chamber does not have access to jurisprudence of the International Criminal Tribunals (hereinafter ‘ICTs’) or any other tribunals unless it is the portion of these tribunals’ case law in which they apply the ICCPR’s right to “be presumed innocent until proven guilty according to law.”   

The right to “be considered innocent until the court has judged finally on the case” is integral to separation of cases and ought to be jealously guarded in the event of such (while a plausible argument can be made that the importance of the right is significantly reduced in cases of vertical separation, no such argument can be made in cases of horizontal separation). Being part of the Cambodian judiciary the Supreme Court Chamber bears a constitutional obligation to “protect the rights and freedoms of the citizens”[27] (while it is naturally expected that the defense will bring instances of necessity of such protection to the attention of the judiciary, if the defense fails in that duty (as it is the case here) the judiciary has constitutional authority to identify the needs of protection and protect the rights sua sponte)).

As stated in the title of this section of the Brief, the Supreme Court Chamber will therefore have to answer two key questions: (1) is Rule 89ter constitutional? and (2) is the Trial Chamber’s Severance Order based on this Rule constitutional? (As noted above, the Supreme Court Chamber has no option of resolving this issue through lesser means, i.e. by determining whether Rule 89ter and the Severance Order comport with the statutory (ECCC statutes), rather than constitutional right)).

Before answering the question of constitutionality of any individual Internal Rule the Supreme Court Chamber needs to answer the question of constitutionality of the Internal Rules as such. What may assist the Supreme Court Chamber with this task is the following highly tenable set of features of the IRs: (1) no authority to create internal rules can be derived from the ECCC statutes; (2) the Supreme Court does not have internal rules and applies ordinarily adopted laws and established practice in all proceedings before it; (3) the Constitution directs each of the two houses of the legislature to have its own internal rules;[28] beyond these the Constitution permits the establishment of “other organizational laws;”[29] entry into force of these rules and organizational laws is subject to their passing of the constitutional muster and therefore requires the Constitutional Council’s certification of their constitutionality;[30] to the extent to which the ECCC IRs fall within the ambit of “other organizational laws,” they were never certified as constitutional by the Constitutional Council and consequently there is presently no authoritative decision on whether they pass the constitutional muster; (4) in the Cambodian system, judges do not have a lawmaking authority; judges most definitely do not have the authority to re-write or supplement statutes or displace their individual provisions; the IRs therefore may not be found constitutional if they seek to re-write, supplement or displace the statutes. The Supreme Court Chamber has no authority to test constitutionality of the IRs. This authority is likely within the province of the Constitutional Council under the “other organizational laws” clause. Having no authority of constitutional review of the IRs as a whole, the Supreme Court Chamber a fortiori has no authority to test the constitutionality of an individual IR (in this case Rule 89ter). The Supreme Court Chamber, however, may find that while the status of Rule 89ter as the legal basis for, inter alia, the Severance Order is uncertain, there is a basis for that Order in the “existing procedures” and “existing procedures in force.” To save the Severance Order the Supreme Court Chamber will have to displace the legal basis determined by the Trial Chamber with a basis it might find in the “existing procedures” and “existing procedures in force” that achieves the same result. If no such basis can be found, the Supreme Court Chamber will have no other choice but to consider the Severance Order as an order with no express basis in the law (and by accepting the Trial Chamber’s categorization of its power to issue the Order as being part of the Trial Chamber’s “trial management discretion”) testing the ultimate survival of the Order on whether it comports with the constitutional right to “be considered innocent until the court has judged finally on the case.”

To do so and given the fact that the drafting of the Closing Order in Case 002 did not anticipate a horizontal separation of that case and given that this type of separation runs a pronounced risk of violating the constitutional right to “be considered innocent until the court has judged finally on the case,” the Supreme Court Chamber will need to test for the following: (1) whether separation of a case the closing order for which was written absent knowledge of the possibility of such separation per se violates the right to “be considered innocent until the court has judged finally on the case” (thus establishing a per se rule on the matter); and (2) whether the particular separation ordered by the Trial Chamber in the Severance Order violates the right to “be considered innocent until the court has judged finally on the case” (in this case the Supreme Court Chamber will be answering the question of whether the ordered separation of Case 002 (a) has been done in a substantive manner that fully comports with the right to “be considered innocent until the court has judged finally on the case”) and (b) that the modality of cascading “discrete cases” (in which judgments in preceding cases will be handed down in no relation to the scheduling of subsequent ones but likely during the trials of subsequent ones (e.g. a person tried in Case 002/01 will find out that he was found guilty of murder as a crime against humanity on the basis of the set of facts of Case 002/01 while he is being tried, inter alia, for murder as a crime against humanity on the basis of the set of facts of Case 002/02) does not violate the right to “be considered innocent until the court has judged finally on the case.” If the Supreme Court Chamber establishes a per se rule, it will have the effect of the Chamber striking down Rule 89ter as such (which being a judicial invention will have no constitutional or statutory consequences (i.e. it will go out the same way it came in) unless there is a basis for it in the “existing procedures” and “existing procedures in force” in which case the Supreme Court Chamber will have no authority to strike down the Rule if it is supported by reasonable statutory construction)). If the Supreme Court Chamber finds that the particular separation runs the risk of occasioning a violation of the right to “be considered innocent until the court has judged finally on the case,” the Supreme Court Chamber will have an option of ordering a substantive separation that supplants that of the Trial Chamber (essentially undertaking a de novo review) and that in the opinion of the Supreme Court Chamber does not run the risk of causing a violation of the right to “be considered innocent until the court has judged finally on the case” (the Supreme Court Chamber is expressly prohibited from remanding to the Trial Chamber through a provision that states that “the Supreme Court Chamber shall make final decisions on both issues of law and fact,  and shall not return the case to the Extraordinary Chamber of the trial court;” while there may be an argument as to the extent this provision applies to interlocutory appeals this argument has yet to be put forward).[31] In this case, the Supreme Court Chamber will require substantive expertise and the level of familiarity with the Closing Order for Case 002 that is greater, more nuanced and better informed than that of the Trial Chamber circa the time of the Severance Order. If the Supreme Court Chamber finds that the very modality of cascading “discrete cases” runs the risk of causing a violation of the right to “be considered innocent until the court has judged finally on the case,” the Supreme Court Chamber will be left with no other choice but (1) to establish a per se rule; and (2) to order that the “discrete cases” be rejoined into a single Case 002.                                        

(3)         Probative value of the prosecution’s assertion that “the prospect of future proceedings [in Case 002] is intangibly remote.”

 

There is no doubt that the prosecution relies heavily on this consideration: it is mentioned numerous times in the Immediate Appeal, it merits, in the prosecution’s opinion, an entire subsection and it is prefixed by a variety of modifiers (“exceedingly remote,” “intangibly remote,” “so remote,” “very remote”) added for pith. And yet nothing adds more pith to an argument better than evidence and its source. Those are absent in the prosecution’s otherwise eloquent description of how unlikely any further trials in Case 002 are. The Supreme Court Chamber can thus only guess as to the source of the prosecution’s knowledge. A guess is not a basis on which a court of law can enter an order. As a sidebar, it is noteworthy that by putting forward an argument based on a hypothesis, rumor or projection the prosecution, ironically, went against its own criticism of the Trial Chamber’s using the same basis for a consideration of projected “defense objections.”[32] If the prosecution believes that this basis did not amount to “a legitimate factor” when entered by the Trial Chamber, nor does the prosecution’s argument of remoteness of other trials in Case 002.

The absence of a factual basis to support the prosecution’s claim will make it impossible for the Supreme Court Chamber to test it (e.g. if it were based on the health relevant to the advanced age of the accused, it would be possible for the Supreme Court Chamber to ask the prosecution as to why it believes the accused will not be able to participate in cases subsequent to Case 002/01 (there is no lack of medical documentation that attests to the health status of the accused at this point); if it were based on the funding available to conduct this process, it would be possible for the Supreme Court Chamber to ask the prosecution as to why it believes that (a) no funding will be forthcoming; and (b) if it is so, that absent funding for international participation “the Cambodian side” of the ECCC will be unable or unwilling to conclude these proceedings on its own).       

 

(4)         Reconciliation and creation of a historical record as legitimate considerations in the Immediate Appeal and in these proceedings at large.

 

The prosecution argued that “the goals of national reconciliation and an accurate historical record” are legitimate considerations for orders entered in these proceedings. The prosecution cites no authority as a source of this statement. As I established above, the lex specialis nature of the ECCC statutes, inter alia, is indicative of the fact that by adopting them the legislature said everything it meant to say on the subject. The ECCC Law declares its purpose as “to bring to trial 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.”[33] Not a single reference to anything that can be – no matter with what amount of artifice – read as “national reconciliation and an accurate historical record” being part of the purpose of the ECCC. The only statute that does mention “national reconciliation” in any form is the ECCC Agreement statute. This statute did not frame national reconciliation as part of the purpose of the ECCC (and most definitely not as one of “the ultimate goals of the trials”) but merely acknowledged that the General Assembly of the United Nations had found that “pursuit […] of national reconciliation” was a “legitimate concern of the Government and the people of Cambodia”[34] (the statute therefore brooks no reading of it to mean that “pursuit of national reconciliation” is part of the intended purpose of the ECCC; the Trial Chamber’s declaration to this effect cited by the prosecution[35] is based on judicial activism that in this case had the effect of reading into the law). The ECCC Agreement statute makes no mention, however – even of the most tenuous nature – of the creation of an accurate historical record being part of the purpose of the ECCC. The “existing procedures” and “existing procedures in force” explain the essence of the process of which the ECCC is a part very aptly, however. To this effect they state that the criminal process consists of “two separate kinds of legal actions”: one of them is the criminal action and the other is the civil action; “[t]he purpose of [the] criminal action is to examine the existence of a criminal offense, to prove the guilt of an offender, and to punish this person according to the law; [t]he purpose of [the] civil action is to seek compensation for injuries to victims of an offense and with this purpose to allow victims to receive reparations corresponding with the injuries they suffered.”[36] This therefore constitutes the entirety of the statutorily defined purpose of any criminal process in Cambodia, including that of the ECCC.[37] This, however, does not mean that the furtherance of the ECCC process does not engender byproducts. “National reconciliation and an accurate historical record” may or may not be such byproducts (although I would like the prosecution to show a single example anywhere in the world where criminal justice brought national reconciliation; there is no lack of examples of places where it bought reignited animosity, political rupture and civil unrest, but most definitely not reconciliation). If they are, it will be a matter of unintended consequence (such as the gentrification of the building in which the Court sits was, for example), not a matter of achieving the stated purpose of the process. These byproducts or an applicant’s intent to steer the process towards producing them therefore cannot be considered as legitimate considerations for any orders entered in these proceedings and are best left to politicians and civil society (national reconciliation) and historians (an accurate historical record). The prosecution is, however, correct that the Trial Chamber made “a discernible error in the exercise of its [unprescribed] discretion” regarding the consideration of national reconciliation as part of the purpose of this Court: the Trial Chamber did so by sua sponte answering the question of the manner in which these proceedings relate to the purported (there is not a single national reconciliation program presently run by the RGC)[38] political goals of national reconciliation.

 

(5)         Contours of the substantive scope of proceedings in Case 002/01

 

The ultimate purpose of the Immediate Appeal is to convince the Supreme Court Chamber that the Trial Chamber’s non-inclusion of two locations (District 12 and S-21) in Case 002/01 was erroneous and to obtain an order that these locations be included.

The Trial Chamber-ordered substantive scope of Case 002/01 can be summarized as follows: (1) structure of the Democratic Kampuchea government (overall structure, positions and responsibilities of the accused in that structure; the system of communication within that structure); (2) policies of  Democratic Kampuchea raised in the Closing Order; (3) crimes committed during “population movement phases 1 and 2.”

Summarizing the Trial Chamber’s reasons for the non-inclusion the prosecution notes the following: (1) risk of the substantial prolongation of the trial; (2) lack of the locations’ close connection to “the existing factual allegations in Case 002/01;” (3) the location’s fitting “within the logical sequence of the trial in Case 002 as described in the Severance Order; (4) delays that would be caused by the expansion of the scope of the trial.

Reasons (2) and (3) can be best described as a distinction without a difference. So can be (1) and (4). As such, there are two core reasons that were given by the Trial Chamber: (1) extending the length of trial in Case 002/01 and (2) the locations’ unfitness with the substantive scope of Case 002/01.

For Core Reason (1), there is a test contained in the “existing procedures” and “existing procedures in force.” Under this test the trial court’s discretion to “exclude from the hearing everything that [it] deems to unnecessarily delay the trial hearing” is only subject to the trial court’s finding that such exclusion is ordered for that which is not “conducive to ascertaining the truth.”[39] This test is clearly spelled out in the “existing procedures” and “existing procedures in force” but both the Trial Chamber and the prosecution either pretermitted it or were ignorant of it. The ECCC statutes prohibit the former and the latter upsets the very foundation of the ancient principle of jura novit curia in the Trial Chamber’s case. It therefore will be most appropriate for the Supreme Court Chamber to correct this error and apply the exclusionary test set out in the “existing procedures” and “existing procedures in force.” The problem is that no appellate review of this discretion of the trial court is provided for statutorily. If the Supreme Court Chamber nonetheless finds that there is a review (through whatever means it might be done), the threshold of “ascertaining the truth” should be considered as very low and intended to rid the proceedings of that which is manifestly irrelevant, vexatious, scandalous or frivolous. However, this is not necessarily the case given the circumstances of the “discrete cases” into which Case 002 was separated. Given this separation, the Supreme Court Chamber will have to elevate the threshold of the test to include answering the question as to the meaning of “the truth” in this instance, essentially asking the question of ‘ascertaining the truth of what?’ as a corollary to the statutory exclusionary test. The answer to that question is without a doubt ‘the truth of that which is within the substantive scope of Case 002/01’. At this point the Supreme Court Chamber will be left with a single central question to answer to resolve this controversy – do the two locations of which the prosecution seeks inclusion in Case 002/01 fit with the substantive scope of Case 002/01?

To answer this question a few presumptions will need to be made. No one at the ECCC knows the Closing Order in Case 002 better than the Co-Investigating Judges and the prosecution (through the Introductory and Supplementary Submissions that formed the foundation of the Closing Order). For that, the prosecution’s opinion on the matter at hand deserves a serious consideration, if not deference (the Trial Chamber informs that “indictments are judicially controlled” at the ECCC[40] but forgets to note that they are judicially controlled by the judges (the Co-Investigating Judges) who have nothing to do with the proceedings once they reach the trial level). However, in the circumstances of Case 002/01 the prosecution is clearly greatly concerned that time and opportunity are running out on it and that there will be no more trials following the conclusion of the trial in case 002/01. The prosecution is worried that the truncated Case 002 will prevent it from getting convictions “reasonably representative of the crimes charged in the Closing Order.” For that reason the prosecution asked the Trial Chamber to include “crime sites at S-21 [and] District 12 […] [that] would significantly assist the Co-Prosecutors to meet [sic] their burden of proof.”[41] It is, of course, a given that judicial chambers are not in the business of assisting the prosecution in meeting its burden. That said, given the fact that the prosecution has by far the most advanced knowledge of the case of all parties and the both benches in Case 002/01, this knowledge may not be left unheeded (not for the reason of the prosecution’s elaborate fantasies of the ICTY jurisprudence as governing law of these proceedings but for the simple reason of common sense which the Supreme Court Chamber is not barred from applying by any legislative enactment). Routinely, it would be appropriate for the Supreme Court Chamber to order the inclusion as sought by the prosecution. However, the circumstances of the Immediate Appeal outstrip the confines of that which is routine. It is clear that the prosecution is trying to secure its position in an environment it perceives as volatile and precarious. The question here is whether it is doing so through good-faith means. The Immediate Appeal is further compounded by the fact that S-21 is one of the locations the inclusion of which the prosecution seeks through the Immediate Appeal. The reason for this compounding is twofold: (1) the Trial Chamber developed expert knowledge on S-21 by presiding over Case 001 (which largely dealt with S-21) and now possesses it at least at the level of the prosecution (the Trial Chamber’s bench has experienced no turnovers and therefore presently contains the same people who tried Case 001 which means that the Trial Chamber’s expertise on S-21 is not only institutional but also personal) and with that expertise the Trial Chamber found that S-21 did not fit with the substantive scope of 002/01; and (2) the prosecution prevailed in Case 001 and is likely to seek its inclusion in Case 002 to extend this victory, through numerous judicial notices of adjudicated facts, to Case 002. It is further compounded by the Supreme Court Chamber’s undisputed (even the prosecution concedes to this)[42] obligation not to disturb the Trial Chamber’s discretion unnecessarily. It is yet further compounded by the fact that the Trial Chamber cannot be said to have developed the same level of expert knowledge of Case 002 as the prosecution by the time of the impugned decision (it is not a demerit to the Trial Chamber but a mere recognition of the fact that the prosecution had had 5 years with it and some of its staff about 20 years on top of that prior to the inception of the Court).

In light of the above, the easiest way for the Supreme Court Chamber to dispose of the issue appears to be by giving deference to the contours of the substantive scope of Case 002/01 arrived at by the Trial Chamber in the exercise of its trial management discretion. This, however, would be unfair to the prosecution in light of its superior knowledge of the Closing Order in Case 002. Given that the Trial Chamber’s expertise regarding S-21 is presently at least on a par with that of the prosecution, the prosecution cannot claim superior knowledge in regard to S-21. It can do so, however, regarding District 12. Therefore, deferring to the Trial Chamber’s trial management discretion regarding S-21 and deferring to the prosecution’s superior knowledge of the Closing Order in Case 002 and a fortiori the evidence adduced regarding District 12, provided the Supreme Court Chamber does not find that the prosecution’s requests for inclusion were made in bad faith (the exclusion of S-21 will allay those concerns to a considerable degree but not entirely), appear to be a fair way of disposing of this controversy. Another way of disposition that is available to the Supreme Court Chamber is that of determining whether S-21 and District 12 fit within the contours of the substantive scope of Case 002/01 drawn by the Trial Chamber by developing relevant expertise and subjecting the evidence adduced regarding S-21 and District 12 and the contours drawn by the Trial Chamber to a test informed by that expertise (essentially undertaking a de novo review). The apparent downside of this option is that the Supreme Court Chamber is unlikely to have the time or the manpower to undertake a task of this magnitude within the confines of an immediate appeal. This leaves the Supreme Court Chamber with the first option as the most viable of the two.                                          

[1] Prosecutor v Noun, Ieng and Khieu (Co-Prosecutors’ Immediate Appeal of Decision Concerning the Scope of Trial in Case 002/01) 002/19-09-2007-ECCC/SC (7 November 2012) ¶ 21.

 

[2] Cam. Const. (Kingdom of Cambodia, 1993; amended 1999), art. 90 new and art. 99 new.

[3] Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (2001; amended 2004), art. 10new and 11new.

[4] Id, art. 19.  

[5] Id, art. 20new.

[6] Id, art. 23new.

[7] Id, art. 25.                                                                     

[8] Id, art. 33new.

[9] Id, art. 34new.

[10] E.g. Interview with Hun Sen Hun, Kyodo News, August 17, 1999, at http://www.cnv.org.kh/cnv_html_pdf/cnv_20.PDF (last accessed: January 20, 2013) (In this interview Hun Sen refers to his agreement with the UN that “[the Khmer Rouge trial] [will] be conducted by the existing courts of Cambodia with the international assistance.” He then proceeds to chastise the UN for trying to convert Cambodia’s existing 3-tiered justice system to a one-tier court by accusing the UN of “want[ing] to destroy the existing structure of the court of law in Cambodia” which he in turn categorizes as being “tantamount to a violation of sovereignty of an independent country.” Hun Sen further states that “[a]s head of the Government and the Executive in Cambodia I never request [sic] the trial of the Khmer Rouge to be internationalized.” Commenting on the statutes Hun Sen revealed plans of “incorporate[ing] the Convention [on Prevention and Punishment of the Crime of Genocide] into Cambodian law in order to be able to hold the trial of genocide.” Hun Sen further lambasts his understanding of the contemporaneous UN proposal to have “Cambodian government” appoint “the Cambodian judges” which he finds unacceptable for it is his opinion that this is in conflict with the relevant Cambodian law (the Constitution under which the King appoints the judges upon recommendation of the Supreme Council of Magistracy); Thomas Hammarberg, How the Khmer Rouge Tribunal Was Agreed, Searching for the Truth, 2001 (The author reports that in March 1999 Hun Sen stated that “Cambodian law did not allow for the participation of foreigners as judge or prosecutor” thus clearly indicating that it was Cambodian law Hun Sen had in mind for the tribunal as governing law; the author further quotes Foreign Minister Hor Namhong as stating that the Cambodian approach comports with the Cambodian law while “[t]he international standards are not clear;” in April 1999 Hun Sen communicated to the Secretary- General that the trial of Ta Mok and possibly others would take place “in an existing Cambodian court” but international judges and prosecutors would be invited to participate); David Scheffer, The Negotiating History of the ECCC’s Personal Jurisdiction (2011), at http://www.cambodiatribunal.org/blog/2011/05/negotiating-history-eccc%E2%80%99s-personal-jurisdiction (The author reports that in June, 1999 the UN Secretariat “brief the Security Council on the UN officials’ proposal for a mixed tribunal for Cambodia to be established under Cambodian law, but with international assistance” (emphasis added)).       

 

 

[11] Supra note 3, art. 33new.

[12] Id, arts. 4-8.  

[13] Afg. Const. (1964), art. 69.  

[14] The provision survives in Afghanistan’s modern (2004) constitution. 

[15] Prosecutor v Noun, Ieng and Khieu (Decision on Co-Prosecutors' Request for Reconsideration of the Terms of the Trial Chamber's Severance Order and Related Motions and Annexes) 002/19-09-2007-ECCC-TC (18 October 2011) ¶ 3 (the Trial Chamber found that at least a certain rule adopted by the ICTY does not bind the ECCC for it was adopted “within an institutional setting that differs significantly from that of the […] ECCC”). 

 

[16] When the original version of the ECCC Law was being drafted in 1999 and 2000 the concern regarding the “existing procedures” and “existing procedures in force” was more warranted than it has become since 2007 when the new criminal procedure code was adopted. The Supreme Court Chamber’s finding, if made, that all Cambodian law is deficient in some manner sufficient to satisfy at least one prong of the 3-part test would be tantamount to saying that the efforts of multiple teams of legislative drafters (who made meticulous efforts to ensure the code’s compliance with international standards), the expansive public commentary that was offered and the contemporaneous French criminal procedure code upon which the new code is largely based cumulatively amounted to an unsatisfactory result.  

 

[17] Code of Criminal Procedure of the Kingdom of Cambodia (2007), art. 318. 

Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (2001; amended 2004), art. 10new and 11new.  

[18] Prosecutor v. Jadranko Prlic et al., Case No. IT-04-74 (Decision on Prosecution's Appeal Against the Trial Chamber's Decision on Slobodan Praljak's Motion for Provisional Release (ICTY Appeals Chamber), 8 July 2009, ¶ 5. 

[19] Prosecutor v Noun, Ieng and Khieu (Severance Order Pursuant to Internal Rule 89ter) 002/19-09-2007-ECCC/SC (22 September 2011) ¶ 4.

[20] Id, ¶ 6.

[21] Prosecutor v Noun, Ieng and Khieu (Decision on Co-Prosecutors' Request for Reconsideration of the Terms of the Trial Chamber's Severance Order and Related Motions and Annexes) 002/19-09-2007-ECCC-TC (18 October 2011) ¶¶ 7 and 8, and fn. 10 (the Trial Chamber stated that it “does not consider that any appeal of the first verdict prevents continuation of the subsequent trials in Case 002 in relation to the remaining counts and factual allegations in the Indictment”).

[22] Supra note 2, Const., art. 38. 

[23] Id, art. 136new.   

[24] Id, art. 31.

[25] Office of the High Commissioner for Human Rights in Cambodia, A Selection of Laws Currently in force in the Kingdom of Cambodia (last updated: 2006).

[26] Cam. Const. (State of Cambodia, 1989), art. 35.

[27] Supra note 2, Const., art. 128new.   

[28] Id, arts. 94 and 114 new. 

[29] Id, art. 140 new.  

[30] Id, art. 140 new.

[31] Supra note 3, ECCC Law, art. 36 new.  

[32] Supra note 1, Immediate Appeal, ¶¶ 51-53.  

[33] Supra note 3, ECCC Law, art. 1.

[34] 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), Preamble.

[35] Supra note 1, Immediate Appeal, ¶ 38 (the prosecution cites Decision on Appeals Against Orders of the Co-Investigating Judges on the Admissibility of Civil Party Applications, 24 June 2011,  ¶ 65).  

[36] Supra note 15, Crim. Proc. C., art. 2.

[37] To pre-empt a question regarding this statute’s relation to the subject-matter jurisdiction of this Court, yes, it does regulate the procedural aspects of at least most of the offenses within this Court’s jurisdiction (arts. 9, 210, 608).  

[38] In fact, in 1999 Foreign Minister Hor Nam Hong was quoted as stating that “Cambodia has achieved peace and reconciliation” (Thomas Hammarberg, How the Khmer Rouge Tribunal Was Agreed, Searching for the Truth, 2001).

[39] Supra note 15, Crim. Proc. C., art. 318.  

[40] Supra note 15, Decision on Co-Prosecutors' Request for Reconsideration of the Terms, ¶ 4.

[41] Supra note 1, Immediate Appeal, ¶ 9 (the prosecution cites the Notice of Co-Prosecutors' Position on Key Issues to be Discussed at the 17 August 2012 Trial Management Meeting (with Confidential Annex A) (15 August 2012) ¶ 20.

[42] Id., ¶ 24.