Supreme Court quashes some convictions, but upholds life sentences in ECCC’s Case 002

Beyond the Hague is excited to welcome Dr. Rachel Killean for this guest post on the recent appeal judgement at the Extraordinary Chambers in the Courts of Cambodia. Rachel holds a PhD from Queen’s University Belfast, in which she examined the extent to which international criminal courts can respond to the needs and interests of victims. In particular, her research focused on the role of victims within the ECCC.

On the 23rd November 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) released its appeals judgment in Case 002/01, upholding the life sentences given to Khieu Samphan and Nuon Chea, two former senior leaders of the Khmer Rouge regime. The judgment rejects the accused’s allegations of fair trial breaches, and upholds convictions for crimes against humanity of murder, persecution on political grounds and other inhumane acts.

However, the SCC did not uniformly support the conclusions of the Trial Chamber (TC), and a number of convictions were reversed on the basis that there was insufficient evidence to support the TC’s conclusions. The SCC also excluded the applicability of joint criminal enterprise III, finding that at the time the crimes were committed (1975-1979) criminal liability based on making a contribution to the implementation of a common criminal purpose was limited to crimes that were actually encompassed by the common purpose. This blog post seeks to provide a brief overview of the background to this judgment and some comments on its findings.

The ECCC is tasked with addressing the crimes perpetrated during the Khmer Rouge regime, a communist regime which seized power in Cambodia on 17 April 1975, and over the next three years, eight months and 20 days are believed to have caused the deaths of at least 1.7 million people, either directly through execution, or through the starvation and illness caused by their policies of forced labour.

eccc(Photo credit: www.eccc.gov.kh)

The appeals judgment in Case 002/01 brings to an end the first segment of the ECCC’s ongoing series of trials against Khieu Samphan and Nuon Chea. The case originally involved four accused. However, Ieng Thirith, the former Minister of Social Affairs during the Khmer Rouge, was found unfit to stand trial in November 2011, while the case against her husband Ieng Sary, the former Minister of Foreign Affairs, was similarly dropped on 14th March 2013 following his death the same day.

These incidents brought into sharp relief the risks associated with pursuing justice for crimes perpetrated over forty years ago, and a decision was made to sever the substantial case against the remaining defendants into a series of sub-trials. Case 002/01 was thus controversially limited to the forced movement of the population from Phnom Penh and later from other regions, and the execution of Khmer Republic soldiers at Toul Po Chrey execution site immediately after the Khmer Rouge takeover in 1975.

The initial Trial Judgment was released on the 7th of August 2014. The TC found that both accused had participated in a joint criminal enterprise to achieve the common purpose of implementing a rapid socialist revolution through a ‘great leap forward’ by whatever means necessary. The Chamber found that this common purpose was implemented through policies to forcibly displace people from cities and towns and between rural areas, and a policy to target former Khmer Republic officials.

Nuon Chea and Khieu Samphan were thus found to have committed the crimes against humanity of murder, political persecution and other inhumane acts (comprising forced transfer, enforced disappearances and attacks on human dignity) during the movements of the population, and murder and extermination through executions of Khmer Republic officials.

This judgment was not without its critics. In addition to resulting in appeals from both Nuon Chea and Khieu Samphan highlighting several hundred alleged errors of law and fact, the judgment was criticized by trial observers for “(1) repeated failures to resolve conflicting or internally inconsistent accounts, and (2) a strong tendency toward vagueness and lack of precision, including a failure to justify the findings by reference to specific weighing of the evidence; and failure to specify how the burden of proof beyond a reasonable doubt was met in regard to what other inferences, if any, could plausibly be drawn from the evidence on which the Court chose to rely.“

It appears the SCC shared some of these concerns, as is evidenced by its reversal of a number of the two accused’s convictions. For example, when reversing the conviction for the crime against humanity of extermination in relation to the evacuation of Phnom Penh, the SCC observed that the TC had not established the required scale of death, but had relied on “estimates that had been given as to the death toll” (para 536) and had sought to address this limitation by “not making a concrete finding as to the minimum death toll” (para 537). Similarly, in relation to extermination during the second population transfer, the SCC noted that the evidence provided “insufficient support for the Trial Chamber’s extrapolation that deaths occurred on a ‘massive scale’” (para 556), and again reversed the finding of extermination.

Again, when quashing the conviction of persecution during the second population transfer, the SCC noted that the TC had relied on only “a small sample of the individuals who had been affected by the population transfer” (para 633), and that the crime was not reasonably established (para 863).

The SCC found that the TC convictions of extermination, murder and persecution on political grounds in relation to the execution of Khmer Republic officials was based on “hearsay, out-of-court statements and documents” (para 888), and evidence of “inherently low probative value, with hardly any discussion as to their relevance, reliability and potential corroboration (para 891).” Indeed, the SCC noted “marked inadequacies in the evaluation of the evidence” and a consistent failure to engage with fundamental issues affecting the strength of the evidence (para 970). As a result, despite finding that there was evidence of Khmer Republic officials being murdered, it was found that the liability of the accused had not been proven, and the convictions were reversed.

In relation to the Co-Prosecutors’ appeal in relation to JCE III, the SCC found that although the appeal was procedurally inadmissible, it gave the SCC the opportunity to analyse the concept of JCE III. In upholding the finding that JCE III was not customary international law at the time the crimes were committed, the ECCC has vindicated critics of this extended mode of liability, who have disputed its existence since the ICTY controversially outlined JCE in its Tadić appeals judgment. How this finding will affect the Co-Prosecutors’ strategy, particularly in relation to the charges of genocide, remains to be seen.

This appeal judgment is an important contribution to the legacy of the ECCC. While delivering accountability for the grave crimes perpetrated during the Khmer Rouge is an important goal, the legitimacy of the Court depends on judgments being well reasoned and fair. In choosing to reverse some of the more contentious findings, while maintaining the life sentence due to the gravity of the crimes, the SCC has hopefully improved the reputation of the ECCC’s jurisprudence and enhanced its contribution to international criminal law more broadly.

 

Complementarity in the Cote d’Ivoire – Guest Post by Traoré Drissa

Editor’s Note: Beyond The Hague is delighted to publish this review (in French) of the International Center for Transitional Justice (ICTJ) Handbook on Complementarity by Traoré Drissa, a human rights lawyer in the Cote d’Ivoire who assesses the complementarity issues at play in his home country, and how the handbook can assist national structures. An English version is available here.

Note de la rédaction: Beyond The Hague est heureux de publier cette revue du Guide de la complémentarité préparer par le Centre international pour la justice transitionnelle (ICTJ). L’auteur est Traoré Drissa, avocat des droits de l’homme en Côte d’Ivoire, qui évalue les questions de complémentarité dans son pays, et comment le Guide peut aider les structures nationales.


Par Traoré Drissa, Avocat au Barreau d’Abidjan, Vice-Président de la Fédération Internationale des Ligues des Droits de l’Homme (FIDH)

Le renforcement des systèmes judiciaires nationaux constitue le gage de l’efficacité de la lutte contre l’impunité et de la prévention des crimes les plus graves. Cependant en raison de la défaillance des juridictions nationales, lors de conflits armés de grande ampleur, les Etas ont décidé de la création de la Cour Pénale Internationale (CPI).

Simone GbagboSimone Gbagbo at opening hearing of trial for crimes against humanity (photo: AFP)

L’ouvrage préparé et publié par le Centre International pour la Justice Transitionnelle (ICTJ) intitulé « Guide de la complémentarité » permet aux professionnels et aux moins avertis de pouvoir comprendre le fonctionnement de la CPI et surtout sa relation avec les juridictions nationales, dans le cadre cette lutte contre l’impunité.

Il permettra de faire tomber certaines barrières notamment l’accusation portée contre la CPI par une certaine opinion africaine qui la taxe d’être un instrument « néocolonial » ou de domination des peuples africains par l’occident. Le lecteur comprendra aisément que la CPI, organe international de lutte contre l’impunité ne peut trouver de compétence qu’en raison de la défaillance des juridictions nationales. En d’autres termes si les juridictions nationales font leur travail, la CPI ne pourra pas intervenir.

Expérimentation de Modes de Justice internationale : des tribunaux ad hoc à la CPI

L’on doit retenir que les situations de conflits internationaux et même de confits internes ou aujourd’hui asymétriques (terrorismes…) ont donné lieu à l’expérimentation de diverses méthodes de justice. Les Tribunaux ad ’hoc et spéciaux ont été mis en place. L’on est passé des  Tribunaux de NUREMBERG et de TOKYO après la deuxième guerre mondiale au Tribunal Pénal International (TPI) pour le RWANDA et celui pour l’ex-YOUGOSLAVIE ainsi que le Tribunal Spécial pour la Sierra-Léone et récemment les Chambres africaines extraordinaires  instituées par l’Union Africaine auprès de la Justice Sénégalaise pour juger l’ancien Président Tchadien Hissène Habré.

La particularité de ces juridictions ad ‘hoc était de connaitre d’infractions graves commises avant leur institution. Elles avaient une primauté sur les juridictions nationales pour les faits dont elles étaient saisies c’est–à-dire si une juridiction nationale se trouvait saisie simultanément avec l’une de ces juridictions ad ‘hoc selon leur sphère de compétence, la juridiction nationale devait se dessaisir à leur profit.

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Meaningful victim participation – but only if you can pay for it?

 

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Near Gulu, Uganda

 

On May 26th, the Single Judge of the Trial Chamber IX denied legal aid to 2/3 of victims participating in the Ongwen case – the ICC’s only case so far in relation to the Lord’s Resistance Army rebellion that for years terrorized communities in northern Uganda. The Single Judge’s decision does not come as a complete surprise: it affirms the interpretation of rules on financial  assistance for victims proposed by the Pre-Trial Chamber in November 2015, which I wrote about previously. In a broader perspective, it is not only a decision on legal aid, it is a step towards focusing victims’ representation with the ICC’s Office of Public Counsel for Victims (OPCV) and limiting victims’ procedural rights, specifically victims’ right to choose their legal representative.

Currently, a total of 2064 victims are admitted to participate in the trial, scheduled to begin in December. Why were 1434 of these victims denied legal aid? Have they failed to prove their indigence? Have their lawyers failed to meet the standards of quality and cost efficient representation?  No. The reasons underlying the Single Judge’s decision have nothing to do with the victims’ indigence or performance of their counsel. The 1434 victims were denied legal aid because they agreed to choose the same representative without engaging the Court’s assistance. Unlike the remaining 592 victims, who made no decision on their legal representation and for whom the Chamber appointed the ICC’s OPCV to act as a Common Legal Representative (CLR), these 1434 victims have fully exercised their freedom to choose a legal representative in accordance with the rules. Importantly, their choice has been approved by the Court as being without prejudice to the effectiveness of proceedings. This decision strikes a blow to meaningful victim participation, it is based on a mid-reading of the rules and is inconsistent with previous practice of the Court. Continue reading

Representation of victims in the Ongwen case

From Gulu to ICC_google maps

The Hague to Gulu, Uganda (photo: Google maps)

The confirmation of charges hearing in the case of Dominic Ongwen has begun. Many victims of the conflict in northern Uganda have been waiting for this moment for the past ten years. More than 2000 victims had been admitted to voice their views and concerns in the case brought by the Prosecutor against one of the top LRA commanders. How will they do that? Through their legal representatives standing in a court room in The Hague, 10,000 km north of where most of the participating victims reside.

Inclusion of victims in the ICC proceedings has been and continues to be one of the most hailed features of the Rome Statute system. There are many doubts, however, as to how it is being implemented. In light of the ongoing (never ending?) debate on “meaningful participation” of victims in ICC proceedings, it is worth looking at the recent developments in the Ongwen case regarding victims’ representation. The effectiveness of victims’ participation in the ICC proceedings depends largely on the performance of their counsel.

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Reparations and Assistance for Victims: Lessons from the ICC and Colombia

This post is based on my new paper in the International Journal of Transitional Justice’s forthcoming special issue, “Reconsidering Appropriate Responses to Victims of Conflict,” guest edited by Juan Mendez. Comments are welcomed!

In March 2015, the Appeals Chamber of the International Criminal Court issued its first-ever judgment on reparations, in the Thomas Lubanga Dyilo case, confirming the Court’s historic commitment to moving beyond retributive justice for victims of the gravest crimes. At the same time, it urged the Court’s Trust Fund for Victims (TFV) to issue assistance measures to victims who fall outside the scope of victimization determined at trial [Reparations Judgment, para. 215]. The use of assistance to complement, fill in, or expand reparations programs is both novel and increasing in international law and transitional justice, yet there is little research focused specifically on their combination.

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A Peace March supported by the Colombian Victims’ Unit, which implements reparations and assistance for victims of the armed conflict. Source: Victims’ Unit

In my paper in the forthcoming special issue on victims in the International Journal of Transitional Justice, edited by Juan Mendez, I present two contemporary examples where reparations and assistance are being combined for victims of grave crimes: the ICC’s forthcoming reparations awards in the Democratic Republic of the Congo [see here and here] and Colombia’s recent reparations program – Law 1448 – for victims of its armed conflict.

The relationship between ‘reparations’ and ‘assistance’ exposes fundamental tensions at the heart of transitional justice: between inclusive and exclusive approaches to reparative justice; between the legal strictures of redress and the complex realities of violence; and, ultimately, between the supposed symbolic power of reparative justice and victims’ experience of reparations in practice. While scholars and practitioners often assume that reparations and assistance are clearly distinct, their combination suggests otherwise. Both the ICC and Colombian cases highlight that the line between reparations and assistance can become blurry in practice. They can look similar in form, have similar impacts, be distributed through similar processes and, I argue, impart similar notions of responsibility and recognition to victims of grave crimes and gross violations of human rights.

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Rearming CAR’s forces in a transitional justice framework

(This post has been modified from a previous article published by the International Peace Institute’s Global Observatory)

As international forces scrambled to provide security for the visit of Pope Francis to the Central African Republic (CAR) and recent, largely-peaceful elections, local and international actors have called for the rearmament of the country’s armed forces following the re-emergence of sectarian violence. However, such a move is fraught with danger, including threats by certain ex-Séléka factions to invade the capital Bangui should it occur.

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CAR’s national armed forces (FACA) in Bangui, photo credit: AFP

CAR’s recent wave of sectarian violence followed a civil war that erupted in December 2012, when the Muslim-led Séléka alliance headed by Michel Djotodia took up arms and toppled President Francois Bozize’s regime with help from Chadian and Sudanese mercenaries. Ensuing clashes between Séléka fighters and the mainly-Christian “anti-balaka” militias were estimated to have killed over 3,000 people before a ceasefire was signed in July 2014.

Following many months of relative calm, Bangui witnessed a renewal of intense fighting in late September this year. The apparent trigger was the stabbing death of a Muslim taxi driver, with residents of the capital’s PK5 neighborhood taking to the streets. Since then, at least 90 people have been killed and 40,000 displaced, according to United Nations estimates.Cameroonian and Burundian peacekeepers with the UN’s mission in CAR (MINUSCA) were among the dead. National political leaders have also been abducted and the myriad, well-armed militia groups continue to threaten the country’s transition after years of civil conflict.

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Could the DRC Be Africa’s Next Third Term Battleground?

By Alex Fielding, @alexpfielding

[This article is cross-posted from the International Peace Institute’s Global Observatory]

After months of relative calm, the Democratic Republic of the Congo (DRC) has witnessed renewed anti-government protests, prompting the United Nations to warn that the country is again at risk of descending into political violence. The unrest has been prompted by uncertainty over the national electoral process. President Joseph Kabila will reach the end of his second term in 2016 and is constitutionally obligated to step down ahead of polls scheduled for November that year. But the former taxi driver, who was elevated to the presidency after his father’s assassination in 2001, has shown every intention of attempting to stay in power.

Anti-Kabila protesters in Kinshasa, photo: VOA News

Anti-Kabila protesters in Kinshasa, photo: VOA News

Opposition to “third termism” has been spreading in Africa. It began with the October 2014 popular uprising in Burkina Faso, which ousted President Blaise Compaore following his attempts to remove the two-term limit added to the constitution in 2000, and extend his 27 years in office. Burundi was next, with President Pierre Nkurunziza’s announcement that he would run for a third term triggering months of opposition protests and violent clashes this year. Unlike Burkina Faso, Burundi’s embattled president survived, winning controversial reelection in July amidst opposition boycott. Since then, political violence and the targeted killing of opposition activists has continued, with at least 134 reported dead since April 25.

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