The Challenges Ahead

Cambodians’ participation in the ECCC proceedings has been unprecedented in international justice. More than 31,000 people, mostly Cambodians, attended the hearings during the Duch trial[1] and several thousand watched the trial on T.V.[2] In addition, 94 people applied to become a Civil Party in the Duch trial and more than 8,000 people either filed a complaint or applied to become a Civil Party in Case 002.[3] As of May 18, 2011, 318 and 178 people had applied to become civil parties in Case 003 and Case 004, respectively.[4] In parallel to the work of the Court, local organizations have developed and implemented an array of outreach and information programs. Some of these programs inform the population about the accountability process, while others, using the ECCC as a platform, are looking more broadly at issues such as education about the past, healing, truth-telling, and reconciliation. The ECCC is thus not only a series of legal proceedings but its existence also triggered a much larger discussion about the past and the role of the past in the present.

Yet, the ECCC is still facing serious challenges in its work, its image and its operations. First,  Case 002 will be more complex to prosecute than the first case. Case 001 was confined to one crime site, Tuol Sleng and its branches, and had only one defendant. That defendant actively participated in the trial and expressed remorse early on.[5] The second trial will be of four persons who have decided not to talk and a crime scene that covers several sites across Cambodia. Additionally, it will be much more logistically complicated with elderly defendants, four defense teams and many more Civil Parties. As mentioned by Marcel Lemonde, a ECCC former international Co-Investigating Judge, this trial will be challenging to manage and may be one of the most complex since the Nuremberg trials.[6]

Second, the ECCC has had to manage expectations of what it can and should accomplish. Victims and the general public have high expectations of seeing justice done, and several victims and victims associations have heavily criticized the sentence in Case 001. The indictment of the four remaining charged persons on genocide against the Cham and the Vietnamese but not against the Khmer is likely to raise questions.[7] Observers, international and national, have also opined that the Court has the potential to establish a more complete historical record of the Khmer Rouge regime and to reform Cambodia’s judicial system. The latter, especially, is a difficult proposition that will be achieved only if the ECCC meets international due process standards, if the Cambodian government institutes sweeping judicial reforms, and if donor governments continue to bankroll legal programs.

Furthermore, allegations of political interference and lack of transparency continue to mar the image of the Court, jeopardizing opportunities to root principles of international justice in the domestic legal system. The Court had difficulty obtaining interviews with members of the government during the investigation of Case 002, and Prime Minister Hun Sen has made negative statements about Cases 003 and 004. The Court has released limited information about the latest investigations, raising concerns among court monitors about the ECCC’s independence and the transparency of its processes.[8]

Finally, funding is a recurrent issue for the Court. The initial estimate for establishing and operating the ECCC for an anticipated three years was US$56.3 million.[9] The court is now in its fifth year of operation and the total cost of the ECCC operations was just over $100 million by the end of 2010. Total expenditures from 2006 up to the end of 2011, are estimated at $149.8 million.[10] With at least one more trial to go, observers are increasingly concerned that the ECCC will not have sufficient funding to pursue both its judicial work and other residual activities related to the ECCC’s legacy.

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[1] “ ECCC Public Affairs Section, Outreach Work” presented at the ICTJ Workshop on Outreach, Phnom Penh, Cambodia, 3-5 March 2010

[2] Brendan Brady, “A new TV Show is Rapidly Extending the Reach of the Khmer Rouge Khmer Rouge War Crimes Court to Cambodian Households,” Special to Global Post, November 20, 2009, available at

http://www.globalpost.com/dispatch/asia/091116/cambodia-genocide-tribuna....

[3] The information is from Victims Support Section, “VU/VSS Outreach. Brief report for the ICTJ Workshop[“presented at the ICTJ Workshop on Outreach, Phnom Penh, Cambodia, 3-5 March 2010

[4] Julia Wallace, “Government Opposes 318 Civil Party Applications”, The Cambodia Daily, May 19 2011, 22.

[5] See, “Prosecutor v Kaing Guek Eav alias “Duch”, Criminal Case No. 001/18-07-2077-ECCC/TC)”, Cambodia: Extraordinary Chambers in the Courts of Cambodia, Available at http://www.eccc.gov.kh/en/indicted-person/66/transcript. All cited references to documents from the Duch trial can be accessed at this web address.

[6] Stephanie Gee, « Quatre responsables khmers rouges renvoyés devant le tribunal international pour génocide » ; Radio France International, Sept. 16 2010, available at : http://www.rfi.fr/asie-pacifique/20100916-quatre-responsables-khmers-rouges-renvoyes-devant-le-tribunal-international-. Interview with Marcel Lemonde

[7] See “Closing Order, Criminal Case File # 002/19-09-2007-ECCC-OCIJ”

[8] For details on these issues, see “Political Interference at the Extraordinary Chambers in the Courts of Cambodia”, (Cambodia: Open Society Justice initiative, July 2010), available at http://www.soros.org/initiatives/justice/focus/international_justice/articles_publications/publications/political-interference-report-20100706/political-interference-courts-cambodia-20100706.pdf

[9] “Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. Revised Budget Estimates from 2005 – 2009,” (Cambodia: Extraordinary Chambers in the Courts of Cambodia, July 2008), 3, available at http://unakrt-online.org/04_documents.htm#Budget

[10] See, “Note to Media: Correct ECCC Financial Data”, press release, (Cambodia: Extraordinary Chambers in the Courts of Cambodia 20 May 2011), available at http://www.eccc.gov.kh/en/media-center/press-releases