The Extraordinary Chambers in the Courts of Cambodia—the verbose formal title for the Khmer Rouge Tribunal—earned great acclaim for its convictions of two former Khmer Rouge leaders, Nuon Chea and Khieu Samphan, in 2018. These convictions resulted in life sentences for the two men—the former the Deputy Secretary of the Khmer Rouge and the latter the head of state and public face of the regime. The convictions carried even greater symbolic weight, marking the first genocide verdicts rendered for the communist regime’s brutal 4-year rule in the late 1970s, during which between 1.2 and 2.8 million Cambodians perished. Yet, since these convictions, the Court’s proceedings have largely stalled due to significant political interference by the Cambodian Government and a stark difference in opinion between the national Cambodian and international actors on the Court.

Since the Court’s creation, the majority Cambodian-staffed Court has been plagued by political interference. Prime Minister Hun Sen—an ex-Khmer Rouge commander—has routinely compromised the Court’s judicial independence, and, through government-appointed judges, has blocked investigations and prosecutions into potential defendants. This interference has established a tense divide between Cambodian and International judges and prosecutors, recently resulting in multiple contradictory orders issued by the International and Cambodian factions of the Court: orders by the international judges to move forward with cases, and orders from the Cambodian judges to dismiss. Because the Court’s procedural rules did not predict such an impasse, judges are left confused with how to proceed, while three defendants remain in a limbo between trial and dismissal. This stalemate both threatens the future of the Court and the legacy the ECCC will leave behind. However, the Court’s unfortunate experiences with judicial impartiality also provide critical lessons for negotiating future hybrid tribunals in a manner that will limit potential threats of political interference.

A Court Predisposed to Political Interference

The United Nations and the Royal Government of Cambodia created the ECCC by joint agreement in 2003. Following extensive negotiations, the two entities decided to model the Court as a hybrid tribunal, a type of judicial mechanism that combines domestic cooperation with international law. As such, the ECCC applies both Cambodian and international criminal law, staffs both international and Cambodian lawyers and judges, and operates pursuant to a mix of Cambodian and international funds.

In order to appease the Cambodian Government in negotiations, the UN acquiesced to a number of complex structural features that permitted significant Cambodian control over the Court. For instance, the judicial chambers of each level of the court (investigations, pre-trial, trial, and appeal) are composed of a majority of Cambodian judges and a minority of international judges. Each judicial decision at every level requires a supermajority vote, so as to include at least one international judge’s approval. Moreover, many of the critical roles within the Court, including that of prosecutor, are bifurcated into two positions: one international and one Cambodian. Finally, the Cambodian Government enjoys exclusive control over the judicial appointments of ECCC Cambodian judges.

While the hybrid model of justice is laudable in its ideals, in that it seeks to bestow a level of local ownership over proceedings and amplify the involvement of victims in the judicial process, in practice, the model has encountered significant impediments to success, one primary challenge being political interference by state governments. This threat of political influence is especially great for hybrid courts operating in states with governments that are susceptible to corruption and/or have ties to the regime or individuals being prosecuted. As one of the most corrupt nations in the world, and with a government composed of ex-Khmer Rouge soldiers, Cambodia stood little chance of operating an independent and impartial tribunal.

Indeed, from the beginning, Hun Sen routinely sought to stop investigations and prosecutions of Khmer Rouge defendants in attempts to protect his inner circle. He has appealed to Cambodians to move away from seeking justice for the Khmer Rouge crimes and instead called for the country “to dig a hole and bury the past.” He has relied on ECCC judges to manipulate proceedings and on Cambodian police to refuse to arrest defendants charged by the Court. He has also publicly vowed to prevent new indictments beyond the three defendants convicted and threatened that pursuing new prosecutions could return the country to civil war. All in all, Hun Sen’s efforts to thwart the Court have proven largely successful: after more than a decade of operations, the ECCC has convicted only three defendants, including Nuon Chea and Khieu Samphan.

Even more telling, in 2017, the Court dismissed charges entirely against one defendant, Im Chaem, upon concluding that she fell outside the purview of the Court’s jurisdiction, which limits the Court to prosecuting and convicting only “senior leaders” of the Khmer Rouge or those individuals “most responsible” for its crimes. Despite recognizing evidence supporting allegations that Im Chaem, a former Khmer Rouge district secretary, was responsible for overseeing five labor camps and prisons and connected to upwards of 50,000 civilian deaths, the Court ultimately concluded that she did not qualify as a person “most responsible.”

Justice at a Standstill

Today, three charged defendants remain before the Tribunal who have yet to stand trial. In each of these three cases, Cambodian and international prosecutors and judges have gone head to head with how to proceed at every stage of the judicial process. The dynamic is always the same: the international prosecutors and judges seek to move forward with prosecution, while the Cambodian prosecutors and judges move to dismiss all charges.

The Court’s most recent case against Ao An embodies the current tensions within the Court. Ao An was a deputy secretary under the Khmer Rouge, in charge of running the Preah Net Preah district in northwestern Cambodia and the brutal forced labor camp within its territory. At the initial stage of the case, the Co-Prosecutors presented their findings on Ao An’s eligibility for trial to the two-judge Office of Co-Investigating Judges. The Cambodian Prosecutor argued for dismissal of charges on grounds of lack of personal jurisdiction, claiming that, unlike the three convicted defendants, Ao An was not a “senior leader” nor an individual “most responsible” for the Khmer Rouge crimes, and thus did not fall within the purview of the Court’s jurisdiction. The International Prosecutor strongly disputed this finding and moved for the Court to indict Ao An.

In August 2018, in what was then an unprecedented move, the Office of Co-Investigating Judges issued two independent and contradicting orders: the Cambodian appointed Judge issued an order dismissing all charges, and the UN appointed Judge issued an indictment, linking Ao An to tens of thousands of civilian deaths. The case then moved to the Pre-Trial Chamber on appeal, where the Chamber again split on Cambodian/international lines, with the majority Cambodian judges voting to affirm the dismissal, and the minority International judges voting to affirm the indictment and declaring the dismissal order ultra vires. Because the Pre-Trial Chamber failed to obtain a super-majority vote, as the ECCC procedural rules require to move forward, the Office of Co-Investigating Judges’ two contradicting orders remain in effect. The Trial Court has refused to take notice of the case until the dispute is resolved and the Pre-Trial chamber affirms one of the orders—either the dismissal or the indictment—by a super-majority vote.

To complicate matters further, the Pre-Trial Chamber has not been able to request that the Co-Investigating Judges reconsider their contradicting orders, as no international staff have been employed in the Office of Co-Investigating Judges since August 2019. Further, the one International Co-Investigating Judge resigned from the Court in June 2019, and was only just reinstated on April 24, 2020.

In light of this standstill, on March 12, 2020, the judges of the Pre-Trial Chamber publicized an inter-office memorandum, noting their predicament, expressing their frustration, and explaining that continuing in the way they have been would result in “endless litigation.” Adding to this level of confusion, on April 3, 2020, the judges of the Trial Chamber issued a similar memorandum, detailing the contradicting views of its Cambodian and International judges. The Trial Chamber’s memorandum specifically articulated the Cambodian judges’ position that the case was closed before the Pre-Trial Chamber and that there will be no trial for Ao An “now or in the future,” and also spoke to the International judges’ view that the Trial Chamber has “inherent authority” to hear the case. And while these memoranda address the case against Ao An specifically, the same reasoning applies to the cases against the two other remaining defendants before the Court—Yim Tith and Meas Muth—both of whom have also had contradicting dismissal orders and indictments filed against them.

It is clear that the ECCC Internal Rules did not envision this type of situation. Both the International and Cambodian judges of the Pre-Trial Chamber unanimously agree that the Co-Investigating Judges were not permitted to issue their contradicting orders pursuant to the ECCC procedural rules, however, given that the Pre-Trial Chamber cannot reach a super-majority decision on which contradicting order should stand, both orders continue to have effect.

The Effects of a Stalemate

With neither the International judges nor the Cambodian judges willing to make concessions on their positions, the fate of the ECCC hangs in the balance. The International judges’ position is clear: they do not intend to allow the Cambodian judges—who have routinely acted as Hun Sen’s puppets—to prevent the administration of justice. Yet, the will of the Cambodian judges appears to be equally strong, if not stronger.

This standstill comes at a critical time for the Court. For years, many have been predicting the ECCC’s forthcoming closure. Yet, the Court’s current predicament may speed up that closure and prevent trial of the three remaining defendants. Not only does the Cambodian actors’ strategy seek to dismiss the remaining defendants, including Ao An, but it has the added benefit of stalling proceedings and wasting time—an invaluable commodity for the ECCC.

Nearly half a century has passed since the perpetration of the crimes under investigation. Evidence is difficult and nearly impossible to come by. The remaining defendants are all elderly, with worsening medical conditions and fading memories. A previously indicted defendant died before trial, and the Court declared another mentally unfit as a result of dementia. Time for justice is running out, and the Court simply does not have the luxury of spending time dealing with politically motivated procedural complexities.

All of this begs the question: could the ECCC’s current dilemma have been avoided? While much of the current stalemate can be blamed on the Cambodian Government’s improper involvement in the Tribunal, fault should also be allocated to the UN for its lack of foresight. Not only did the UN take an enormous risk in jointly establishing a hybrid tribunal with a government known for corrupt and authoritarian practices and with clear ties to the Khmer Rouge regime, but in its eagerness to do so, it made nearly inconceivable concessions in the type of power it granted the Cambodian Government over proceedings. Further, the negotiations failed to consider certain procedural rules that could have prevented complexities caused by political differences.

Yet while these problems may seem obvious in retrospect, it is seductively easy to judge a court after it errs, rather than to predict and prevent problems beforehand. Instead of loading blame on the creators of the ECCC, it is much more productive to consider the lessons to be imparted by the ECCC dynamics. These include the need to take precautions against political interference when establishing hybrid tribunals in fragile, post-conflict states, including by implementing unambiguous jurisdictional language, clear procedural rules that anticipate the potential for political influence, and oversight and accountability measures for court actors.

The ECCC has always been a flawed and imperfect institution. Even so, the Court has made significant jurisprudential contributions to international criminal law, has advanced victim rights and outreach measures for international courts, and has legally recognized the Khmer Rouge’s conduct as genocide, a label for which many had fought for decades. Equally significant is the Court’s achievement in amassing a historical record of the Khmer Rouge’s reign, which had previously gone largely undocumented. Regardless of whether the ECCC is able to resolve its current civil war, critics should remember the advancements the Court has made for the field of international criminal law, and more importantly, the justice it has obtained for Khmer Rouge victims.

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*Sara L. Ochs is a fellow at Elon University School of Law and will be joining the law faculty at the University of Louisville Brandeis School of Law in Fall 2020. Her research focuses primarily on the roles of international and hybrid courts in prosecuting mass atrocities and the use of transitional justice mechanisms in post-conflict societies.