Are the Walls of Jericho Coming Down?

The Book of Joshua tells a story of ancient Israelites shouting to make the wall of the ancient fortress of Jericho come down.

At the ECCC, the defense lawyers’ shouting did not have the effect of bringing the walls of the court down, in a manner of speaking, but the defense has had help from the least expected quarter – the prosecution. The international lawyer of now late Ieng Sary was correct in saying that the prosecution is to be held responsible for dragging out this process. Not solely, however, but to a great degree. The ECCC prosecution learned absolutely nothing from the Milosevic trial. They did the exact same thing the ICTY did in the Milosevic indictment, i.e. they charged him with everything under the sun and instead of writing law they sought to write history. The Co-Investigating Judges, to a great degree, endorsed the prosecution’s expansive plan manifested in the indictment. The Trial Chamber has done a poor job cutting short the mindboggling exploratory trips into the mindset of Democratic Kampuchea. As a result, we now know what color the wall were painted in Noun Chea’s Phnom Penh apartment that witnessed the creation of CPK, we just do not have half the accused Case 002 started out with. In this pursuit of historical accuracy (which is in no way part of the mandate of this Court despite the prosecution’s absolutely cretinous assertion of the opposite and in a large number of instances is entirely irrelevant to the purpose of the Court) the Court has lost sight of what is important, i.e. the question of whether crimes were committed during Democratic Kampuchea and whether the accused can be held responsible for committing them. Numerous acts of diplomatic posturing (which led absolutely nowhere and got the UN absolutely nothing it did not have before the posturing began) let Kae Pok and Ta Mok slip away. Now Ieng Sary is gone. His wife Ieng Thirith is gone too, for all intents and purposes of the Court. It is interesting that the prosecution is there to represent the public interest in these proceedings and that interest in any criminal proceedings is not history. By bloating out Case 002 the prosecution knowingly jeopardized that interest in favor of having the Court adjudicate every single little detail of the Khmer Rouge history. As a result, the Court now knows things that it never should have known and that should be known to 3 people in the world who care to know them. It is just running out of the accused.  

The above institutions that have done much to help the defense tear down the Walls of the ECCC have since recently been greatly assisted by the donor community which funds the ECCC. That donor community got winded as the Court, led by the prosecutorial indictment (introductory and supplementary submissions) and the no less expansive judicial indictment (closing order), tried to take it the 1,000 flights of stairs of a gyrating and highly convoluted process. The donor community’s enthusiasm has always been lackluster (and surprisingly so given the charges against the accused and the overall notoriety of the Khmer Rouge as a movement) but it recently took a complete nosedive that caused the translators to go on strike. This is a great test of powers of foresight of those who in the immediate run-up to the establishment of the Court were saying – with much air of authority and certainty – that most employees of the Court would be basically volunteers and highly committed individuals who wanted to see this process through till its end. Like hell, they are! The second money dried up the translators jumped ship. So much for commitment to see the process through till the end. Of course, these translators forget that for the last 6-7 years the international community has been paying them grossly inflated salaries of the size entirely insurmountable to the Cambodian economy. One would think they would be good sports about this and help the Court through a rough patch, as the Court has helped them elevate their financial status. Instead, they bailed. They did not choose to do it in any orderly way that would not embarrass the Court publicly but hurled that piece of shit-cake straight at the Court as the day’s session began leaving the bench with a little more than egg on the face. So much for loyalty or commitment to the process.

Are the Walls of ECCC coming down? They might be. If not now, they will if the “shouting” continues. What will the legacy of this Court be, if they do if no conclusive result is reached in Case 002? Legally, most likely the Court’s grappling with foreign law and the idiotic Internal Rules the Court concocted ultra vires and the Court having done everything possible to ignore the Cambodian law on the basis of which the accused were supposed to be prosecuted under the statutory design of the Court. It is a shit-tide and it is unlikely to turn.