My topic is the standard of review in the Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the highest chamber in the Khmer Rouge tribunals. I know it sounds dry, but it's actually quite interesting when you dig into it.
The real problem, crudely stated, is that the ECCC is totally sui generis, and therefore totally unpredictable. The basic structure of the tribunal is laid out in some detail on paper, in its founding statute and internal rules. But the tribunal is so new that the Supreme Court Chamber still hasn't issued any decisions, so there's no telling how it will use its powers.
One example is the Supreme Court Chamber's power to conduct investigations. The ECCC is structured so that a pair of judges, called the Co-Investigating Judges, are supposed to manage the initial investigation into a suspect. They're supposed to put everything they discover into a case file, which they forward to the Trial Chamber. The Trial Chamber should acquit or convict/sentence a defendant, largely on the basis of the case file. The Supreme Court Chamber should hear appeals on very specific issues, and reverse, affirm, or remand Trial Chamber judgments. In the opinion of the prosecutors, all of this should happen fairly quickly.
But the Trial Chamber and the Supreme Court Chamber are both allowed to introduce new evidence into the case file, and even initiate new investigations. The Trial Chamber, instead of ruling fairly quickly on the evidence in the case file, has used its powers to call many of the same witnesses interrogated by the Co-Investigating Judges. As a result, the current trial---of Comrade Duch---has dragged on for months, and shows every sign of continuing to drag on. All of the suspects who are to be tried by the ECCC are aging and in questionable health---many people are afraid that they'll die before the Extraordinary Chambers get a chance to try them, losing the last chance to make Khmer Rouge leaders accountable in court.
The question for me is whether the Supreme Court Chamber will use its powers to run yet another set of witness interrogations and investigations, or whether it can be convinced to limit its role to more traditional appellate questions. So far, I'm proceeding by looking at some of the other international criminal tribunals: the International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). They use similar rules of procedure and evidence, and have issued a number of decisions on how they hear appeals. The problem, of course, is that the ECCC is under no obligation to follow any other court's decisions. While I can argue that the ICTY's approach works pretty well, I can't claim that the ECCC is bound to use it.
In certain ways, the question really boils down to which legal tradition the tribunal should draw from: the civil law tradition, where courts are heavily involved in determining the facts of a case; or the common law tradition, where courts only participate in fact-finding to the extent that they apply rules of evidence at trial. It may seem like counting angels on a pin, but the distinction is actually highly charged.
The Cambodian judges in the ECCC have been accused of incompetence, corruption, and political manipulation. Any effort to reduce their influence may be received as a vote of no confidence, further dividing the international and Cambodian factions in the tribunal.
Besides, many powerful people here stand to benefit from a slow, ineffective process. Hun Sen, the former low-ranked Khmer Rouge official who has been Prime Minister since 1985, has opposed prosecuting anyone other than the five suspects already in custody. Other Khmer Rouge leaders are still living openly in Phnom Penh, and still have considerable wealth and influence.
To complicate matters yet further, any attempt to introduce a common-law approach may be received as an attempt to impose American legal standards on an internationalized court. That can draw knee-jerk accusations of imperialism.
An important backdrop to my work is the Plenary Session coming up this fall. Plenaries are where everyone who is anyone at the ECCC---all of the judges and the heads of the various units---have the opportunity to amend the Internal Rules. The prosecutor with whom I've spoken hopes to persuade the judges in the Supreme Court Chamber to adopt his view of things, and find some way of ensuring that appeals will be heard speedily, with very limited admissibility for new evidence.
Appellate review may not be the sexiest question, but it's an excellent framework for understanding the bigger picture. In the absence of any serious jurisprudence on the nature of the trials, the ECCC is operating more or less on the fly; everyone seems to be making it up as they go. It looks as though my work may actually help move things in one direction or the other, which is very exciting.
Court isn't in session this week, but I'm hoping to attend early next week. After that I'll post something about how things actually look at trial.